Updated: March 10, 2023
PLEASE READ THESE TERMS OF SERVICE CAREFULLY (this “Agreement”). This Agreement has been prepared as a legally binding agreement between “you” or “your” (the “Customer”) and ScholarSelect, LLC (doing business as SmarterSelect) together with its subsidiaries and affiliates (collectively, “SmarterSelect”, “our”, or “we”). SmarterSelect and Customer may be identified as “Party” or Parties”.
This Agreement applies conditions to Customer’s use of the SmarterSelect-branded platform, any related products or services including SendGrant, and any application programing interfaces that allow Customer to access certain features and functions through a web interface, collectively the “Services”. By clicking “Accept” on a web portal associated with the Site, Customer agrees to be bound by the terms and conditions of this Agreement.
DO NOT ACCESS OR USE THE SERVICES IN ANY WAY IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 11, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION.
Revisions to the Agreement
We may revise and update this Agreement from time to time, and will post the updated Agreement to our website and any portal or interface that you access (collectively, the “Site”). ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Site will constitute your agreement to any new provisions within the revised agreement.
- Services. SmarterSelect, its affiliates or third party licensors own and hold all right, title and interest in and to the Services, including without limitation, all intellectual property contained therein, and all materials related to the Services and all intellectual property derived from the Services. No part of the Services may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without our prior express written consent. On the condition that Customer comply with all Customer obligations under this Agreement, SmarterSelect hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services. Any use of the Services in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services.
- Trademarks. “SmarterSelect,” the SmarterSelect logo, “SendGrant,” the SendGrant logo, and all SmarterSelect product names are trademarks or service marks of SmarterSelect or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that Customer shall have the limited right to use the Marks solely as they appear in the Services. Customer shall not use the Marks in any advertising or promotional materials, nor shall Customer disclose SmarterSelect as a data source to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be prior authorized in writing by SmarterSelect. Customer shall not remove, alter or obscure any Marks or proprietary notices contained in the Services or other materials provided by SmarterSelect.
- Subscription and Transaction Fees. You agree to pay any subscription and transaction fees and any applicable taxes (collectively, the “Fees”) related to your subscription to the Services. Your subscription will be on an annual basis and may automatically renew until terminated. Customer must provide SmarterSelect with one or more current, valid, and accepted methods of payment, as may be updated from time to time and which may include payment through your account with a third party. The Fees charged for the Services and any other charges Customer may incur in connection with your use of the Service, will be charged to your payment method on the specific billing date indicated on your account. In some cases, your payment date may change, for example if your payment method has not successfully settled or if your paid subscription began on a day not contained in a given month. Customer may visit your account page on the Site to see your next payment date. We may authorize your payment method in anticipation of any charges related to the Service through various methods, including authorizing it up to approximately one month of Service fees as soon as Customer creates an account.
- Fee Changes. We reserve the right to change the fees charged for our Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any fee changes or changes to your subscription will take effect following notice to you.
- Compliance with Law. Customer represents and warrants that it has all rights necessary to provide any and all Customer Data, documentation and other materials that it may make available to SmarterSelect under this Agreement and that SmarterSelect may use, copy and otherwise manipulate such Customer Data, documentation and other materials as necessary for SmarterSelect to perform the Services required under this Agreement. Customer shall use the Services in compliance with all current and future applicable laws, statutes, ordinances and regulations. Customer shall obtain any necessary permissions, licenses, certificates, permits, approvals or other authorizations required by all applicable laws that relate to Customer’s use of the Services. Customer shall not use the Services for purposes other than as set forth in this Agreement. Customer will not (i) disclose, disseminate, reproduce or publish any portion of the Services in any manner or permit the same; (ii) use the Services to create derivative products or other derivative works; or (iii) disassemble, decompile, manipulate or reverse engineer any portion of the Services.
Restrictions on Your Use of the Services. Customer agrees that when accessing and using the Services, Customer will not: (i) delete, modify, or attempt to change or alter any of the Services or their content; (ii) introduce into the Services any virus, rogue program, time bomb, drop dead device, back door, trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Services, or to otherwise harm other users, or any third parties, or perform any such actions; (iii) use the Services to commit fraud or conduct other unlawful activities, including using stolen payment information to make a purchase; (iv) access or attempt to access any other person’s account, information, or content without permission; (v) copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services is based; (vi) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information from the Services for any reason; (vii) use any content or information made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of either Party; (viii) decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Services; (ix) connect to or access any SmarterSelect computer system or network without authorization; or (x) use information from the Services to create or sell a similar service. We may suspend or terminate, in whole or in part, your access to the Services if Customer violates the terms and conditions set forth in this Section.
- Viruses. We are not liable for any virus, malware, or other harmful code, transmitted from our Site or links on our Site, and you access our Site at your sole risk.
- Feedback and Other Content Submitted By You. If you submit comments or feedback to us regarding the Site or its content, or any other comments, questions, requests, content or information that is not personal information, we may use any comments and feedback that you send us in our discretion and without attribution or compensation to you.
- Information Security. To the extent required by applicable state, federal, and/or local laws, rules and regulations, including, without limitation, data privacy laws, SmarterSelect represents that it has implemented and maintains an information security program which includes appropriate administrative, technical and physical safeguards reasonably designed to: (i) ensure the security and confidentiality of Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Confidential Information; (iii) protect against unauthorized access to or use of Confidential Information; and (iv) ensures disposal of the Confidential Information in a secure manner.
Indemnification by SmarterSelect.
SmarterSelect shall indemnify, defend and hold Customer harmless from and against any claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Customer by a third party to the extent it is based on a claim that the Services infringe a United States patent, copyright or trademark (each, an “Infringement Claim”). SmarterSelect’s obligations with respect to this Section 8.1 are conditioned upon: (i) Customer providing SmarterSelect prompt written notice of the Infringement Claim or threat thereof; (ii) Customer giving SmarterSelect full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (iii) Customer giving SmarterSelect all information and assistance reasonably requested by SmarterSelect in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal.
(b) If an Infringement Claim has been made, or in SmarterSelect’s opinion is likely to be made, SmarterSelect may, at its sole option and expense, either: (i) procure for Customer the right to continue using the Services; or (ii) replace or modify the Services so that it becomes non-infringing. If neither of the foregoing options is reasonably available, SmarterSelect may immediately terminate both Parties’ respective rights and obligations under this Agreement with regard to the Services, and refund to Customer a pro-rata amount of any prepaid Fees actually paid by Customer for the unused portion of such Services.
(c) Notwithstanding the foregoing, SmarterSelect shall have no obligation to indemnify Customer to the extent an Infringement Claim arises from (i) the combination, operation or use of the Services with any other software, data, products or materials not supplied by SmarterSelect, (ii) the use of the Services other than as expressly provided in the Site or otherwise in violation of the terms and conditions of this Agreement; (iii) the alteration or modification of the Services; (iv) SmarterSelect’s compliance with Customer’s designs, specifications or instructions; or (v) Customer’s continued use of the Services after SmarterSelect has informed Customer of modifications or changes to the Services required to avoid the Infringement Claim.
THIS SECTION SETS FORTH SMARTERSELECT’S ENTIRE LIABILITY TO CUSTOMER AND CUSTOMER’S SOLE REMEDIES WITH RESPECT TO ANY THIRD PARTY INTELLECTUAL PROPERTY CLAIMS.
Indemnification by Customer. Except for SmarterSelect’s indemnity obligations set forth above, Customer shall indemnify, defend and hold SmarterSelect harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against SmarterSelect by a third party arising out of or related to the use of the Services by the Customer or its permitted users, Customer’s provision of or SmarterSelect’s use of any data, documentation or other materials provided by Customer under this Agreement and/or or Customer’s breach of this Agreement.
- Term. This Agreement shall commence on the date Customer assents to this Agreement by clicking “Accept” to the Terms of Service and continues until the expiration or termination of Customer’s subscription or at the election of SmarterSelect in its total discretion.
- Effects of Termination. Upon expiration or termination of this Agreement, all license rights granted by SmarterSelect to Customer pursuant to the Agreement shall terminate and Customer shall pay SmarterSelect in full for all Services accessed or delivered.
- Customer Warranties. Customer represents and warrants that (i) it shall enter into an agreement or agreements with each applicant that governs all aspects of Customer’s use, retention and disposal of Customer Data or other information provided by an applicant to Customer or that Customer accesses, including, without limitation, privacy policies, confidentiality agreements and terms of service (collectively, “Information Agreements”); (ii) it will only utilize data from applicants in the manner it is allowed access to such content under its agreements with its applicants; and (iii) its use of the Services shall at all times comply with any necessary pre-registrations, consents and authorizations and applicable law with respect to applicant data and any interactions with applicants.
- Disclaimer. UNLESS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANT-ABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO SMARTERSELECT), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SMARTERSELECT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETE OR FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, 7 DAYS PER WEEK, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE. SMARTERSELECT MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY GEOGRAPHIC AREA.
- Limitation of Liability. SMARTERSELECT’S TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY THE CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTERSELECT, OR ANY PROVIDER OF INFORMATION USED BY SMARTERSELECT IN PREPARING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SMARTERSELECT IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Dispute Resolution and Governing Law, Jurisdiction and Costs
- Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Texas without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in the State of Texas and Customer hereby consents to the exclusive jurisdiction and venue of the state or Federal courts in Dallas County, Texas. Customer irrevocably submits and consents to the personal jurisdiction of such courts. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing Party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement.
- Dispute Resolution. To the extent feasible, the Parties desire to resolve any dispute, claim or controversy arising out of or relating to Customer’s use of or access to the Services, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this Agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The Parties agree to attempt to resolve any Disputes by negotiation with the other Party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, Customer and SmarterSelect agree to resolve such Dispute through confidential binding arbitration as set forth below.
- Binding Arbitration. If Customer and SmarterSelect are unable to resolve a Dispute through informal negotiations, either Customer or SmarterSelect may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website, www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a Party. The arbitrator must follow applicable laws, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement Customer and SmarterSelect may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Waiver of Rights. Customer hereby agrees that Customer understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that Customer may have under Article 13 of the State Bar Act, where applicable, to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS OR THROUGH PARTICIPATION IN A CLASS ACTION OR REPRESENTATIVE ACTION. CLAIMS OR DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
- Relationship of Parties. The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such. The rights, duties, obligations and liabilities of the Parties shall be several and not joint, each Party being individually responsible only for its obligations as set forth in this Agreement.
- Notices. Notices regarding changes in pricing, policies or programs may be communicated by e-mail.
- Assignment. Customer shall not assign or transfer this Agreement or any rights or obligations under this Agreement without SmarterSelect’s prior written consent. A change in control constitutes an assignment under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes grounds for immediate termination of this Agreement by SmarterSelect. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
- Severability. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
- No Waiver. Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this Agreement shall constitute a subsequent or continuing waiver of such right or any other rights under this Agreement.
- Injunction. Customer acknowledges that the Services are a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of SmarterSelect’s intellectual property rights shall be deemed a material breach of the Agreement, for which SmarterSelect may not have adequate remedy in money or damages, and SmarterSelect shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
- Force Majeure. Except for Customer’s obligation to pay the Fees for Services provided, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
- No Third Party Beneficiaries. SmarterSelect and Customer agree that this Agreement is for the benefit of the entities executing such document(s) and are not intended to confer any rights or benefits on any third party and that there are no third party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
- Survival. The following sections shall survive the expiration or termination of this Agreement: 2 (Agreement Structure); 3 (Ownership); 4 (Fees); 7 (Indemnification); 8.4 (Effects of Termination); 9.3 (Disclaimer); 10 (Limitation of Liability); 11 (Dispute Resolution) and 12 (General Provisions).
- Construction. Section headings of this Agreement have been added solely for convenience of reference and shall have no effect upon construction or interpretation of this Agreement. The Parties acknowledge that this Agreement was prepared by both Parties jointly, and any uncertainty or ambiguity shall not be interpreted against any one Party.
- Revisions to the Agreement. SmarterSelect may revise and update this Agreement from time to time and will post the updated Agreement to our Site. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. We are not obligated to provide Customer with notice of any changes. Your continued use of the Site will constitute your agreement to any new provisions within the revised agreement.
- Entire Agreement. This Agreement is the complete agreement between the Parties and replaces any prior or contemporaneous oral or written communications between the Parties. There are no conditions, understandings, agreements, representations or warranties, express or implied, which are not specified herein. This Agreement may only be modified by a written document expressly stated for such purpose and executed by the Parties.
YOU ACKNOWLEDGE AND AGREE THAT SMARTERSELECT HAS NO LIABILITY TO YOU FOR USE OF DWOLLA OR ITS SERVICES.
- Electronic Communications. These Terms and any other documentation, agreements, notices, or communications between you and SmarterSelect may be provided to you electronically to the extent permissible by law. Please print or otherwise save a copy of all documentation, agreements, notices, and other communications for your reference. We may also communicate with you via text messaging, email, or other forms of electronic communications, as such you consent to electronic correspondence from us.
To opt out of the electronic communications, please email us at email@example.com or by following the instructions included in the email or text correspondence.
- Terms Applicable to New Jersey Customers. No provision in these Terms shall apply to any consumer in New Jersey if the provision limits remedies for (i) negligence, (ii) products liability claims, (iii) the punitive damages laws, (iv) the New Jersey Uniform Commercial Code, or (v) failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft). The provisions of these Terms concerning the exclusion or limitation of certain damages are not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property. SmarterSelect reserves all rights, defenses, and permissible limitations under the laws of New Jersey and under the laws of your state of residence.
- Third Party Websites and Content. The Site may link to, or be linked to, websites not maintained or controlled by SmarterSelect. Those links are provided as a convenience to the visitors of our Site. SmarterSelect is not responsible for examining or evaluating the content or accuracy of third-party websites linked through the Site. SmarterSelect does not warrant or endorse any third-party website or any products or services made available through those websites. When leaving the Site, it is the terms of that third party that govern your use of the third-party site, not these Terms.
The Site also contains certain third-party content. We provide third-party content for your convenience, not as an endorsement. The presence of third-party content does not mean that SmarterSelect has reviewed the third-party content or that there is any association between SmarterSelect and any third party. You access third-party content at your sole risk. SmarterSelect has no responsibility for any third-party content. Nothing in these Terms grants you any rights to any third-party content.
- Linking to the Site. You are prohibited from linking to this Site on your website or elsewhere without the prior express written consent of SmarterSelect. If SmarterSelect grants you a right to link to this Site, certain terms may apply, and SmarterSelect reserves the right to revoke such consent at any time. You are responsible for any costs incurred by SmarterSelect in enforcing its rights under this Section.
- Use in the United States. This Site is intended for use in the United States only. We do not guarantee that use of this Site will be available or permitted in any location other than the United States. If you choose to access this Site from a location other than the United States, you do so at your own risk.
- Site Unavailability. Without limiting the generality of the previous section, the Site or content may be unavailable or limited for various reasons, and we shall not be liable to you for any such unavailability, including without limitation (a) hardware, software, server, network, or telecommunications failures, (b) severe weather, war, riot, act of God, pandemics, quarantines, fire, earthquake, strike, labor shortage, etc., (c) regulatory restrictions and other acts of government, (d) interruptions due to utility and power companies, and (e) interruptions due to hacking or other malicious intrusion.
Contact Us. Please direct any questions and concerns regarding these Terms to us at firstname.lastname@example.org. You may also write to us at:
5411 McCommas Blvd.
Dallas, TX 75206