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TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE OR CLICKING “AGREE” YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE. IF YOU ARE AGREEING TO THESE TERMS OF USE 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 THESE TERMS OF USE ON THEIR BEHALF.

These terms of use are between ScholarSelect, LLC (SmarterSelect), and the user agreeing to these terms (User).

1. SOFTWARE SERVICE.

These terms of use provide User access to and usage of an Internet-based software service (Service).

2. USE OF SERVICE

a.   User Owned Data. All data uploaded by User to the Service remains the property of User, as between SmarterSelect and User (User Data). User grants SmarterSelect the right to use the User Data solely for purposes of performing under these terms of use.

b.   User Responsibilities. User: (i) must keep its passwords secure and confidential; (ii) is solely responsible for User 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 user guide and applicable law.

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. USER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4. 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. User’s Confidential Information includes, without limitation, the User 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 terms of use. 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 these terms of use and who have signed confidentiality terms of uses with Recipient no less restrictive than the confidentiality terms of this terms of use.

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.

5. SMARTERSELECT PROPERTY.

a.   Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by SmarterSelect as part of the Service are 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. User may not remove or modify any proprietary marking or restrictive legends in the Service. SmarterSelect reserves all rights unless expressly granted in these terms of use.

b.   Restrictions. User 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.   Aggregated Data. During and after the term of these terms of use, 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.

6. TERM.

These terms of use continue until terminated by either party for convenience at any time.

7. 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 these terms of use (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. SmarterSelect’s total liability arising out of or related to these terms of use (whether in contract, tort, or otherwise) does not exceed $50.

8. USER INDEMNITY.

If a third party claims against SmarterSelect that any part of the User Data violates a law or infringes or violates that party’s patent, copyright, or other right, User will defend SmarterSelect against that claim at User’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by User, provided that SmarterSelect promptly notifies User of the claim in writing, cooperates with User in the defense, and allows User to solely control the defense or settlement of the claim.

9. GOVERNING LAW AND FORUM.

These terms of use are 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 these terms of use. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Dallas County, Texas, and User submits to this personal jurisdiction and venue. Nothing in these terms of use 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.

10. OTHER TERMS.

a.   Entire Terms of use and Changes. These terms of use constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreement, whether oral or written, related to this subject matter. User is not relying on any representation concerning this subject matter, oral or written, not included in these terms of use. No representation, promise, or inducement not included in these terms of use is binding. No modification or waiver of any term of these terms of use is effective unless both parties sign it, however these terms of use may be modified through an online process provided by SmarterSelect.

b.   Enforceability. If any term of these terms of use is invalid or unenforceable, the other terms remain in effect.

c.   Money Damages Insufficient. Any breach by a party of these terms of use 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 terms of use.

d.   Feedback. If User provides feedback or suggestions about the Service, then SmarterSelect (and those it allows to use its technology) may use such information without obligation to User.

e.   Survival of Terms. Any terms, that by their nature survive termination of these terms of use for a party to assert its rights and receive the protections of these terms of use, will survive (including, without limitation, the confidentiality and indemnity terms).

 

Last Revised November 25, 2019