Terms of Service
These Terms of Service (the “Terms”) describe your legal rights and responsibilities when using the online valuation related project management and productivity tools and services provided by Value Scout, LLC. (the “Service(s)”). These Terms create a legal and binding agreement between Value Scout, LLC. (“Value Scout” or “we”) and the Customer (as further described below) agreeing to be bound by these Terms. A Customer may be referred to herein as the “Customer” or as “you.” Those persons who access the Services using Customer’s account are referred to herein as the “End Users.”
Whether you directly sign up for a Value Scout account and purchase subscriptions or accept an invitation to use the Service in conjunction with an individual or company who already has a Value Scout account, you are agreeing to these Terms by accessing and using the Services. If you are an individual not formally associated with an organization (for example an entrepreneur working with a couple of associates prior to the formation of your company), then you are entering into this Agreement on your own behalf, you are the “Customer” and you will be assigned as the administrator of your account. If you register for the Service using your corporate email domain, then your organization is the “Customer” and can modify or re-assign roles within your account and otherwise exercise the rights granted to the Customer pursuant to these Terms. If your organization, in its role as the Customer, elects to replace you as the administrator of its account, we will provide you with notification of such action and you agree to take any actions reasonably necessary and requested by Value Scout or Customer to facilitate such transfer of authority.
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE (SEE SECTION 16b) THAT GOVERNS HOW CLAIMS YOU HAVE AGAINST VALUE SCOUT WILL BE RESOLVED. PLEASE READ THIS PROVISION CAREFULLY.
1 – Access to the Services and Acceptable Use
1.1. Access. To access the Services, You must register for a Value Scout account by providing your full legal name, a valid email address, and any other information required to complete the registration process. As a general rule, your login details may be used up to a maximum of three concurrent sessions; provided, however, that Value Scout may lower this limit at its discretion to address known or suspected issues of inappropriate license sharing. Access to the Services may sometimes be procured via an order form entered into between you and Value Scout (an “Order Form”).
You are responsible for ensuring that each of your End Users abides by these Terms at all times in connection with their use of the Services. It is your responsibility to: (a) inform your End Users of any relevant policies, practices and settings that you elect to enforce related to your End Users’ use of the Services; (b) obtain any rights, permissions or consents from your End Users that are necessary for your lawful use of the Service and the collection and processing of Customer Content (as defined in Section 2 below) by Value Scout in connection with your use of the Services; and (c) respond to and resolve any dispute between you and any of your End Users related to or based on Customer Content and/or your use of that Customer Content in connection with your use of the Services. You, and not Value Scout, are responsible for your End Users’ compliance with your internal policies and procedures.
The Services are not intended for use by those under the age of 18 and You are responsible for ensuring that all End Users are at least 18 years of age.
You and your End Users are responsible for all login credentials, including user names and passwords and Value Scout shall not be liable for any damages or losses that may occur as a result of your failure, or the failure of your End Users, to maintain the confidentiality of their login credentials.
You are responsible for notifying us at support@Getvaluescout.com if you become aware of any unauthorized use of or access to your account.
Value Scout may communicate with you via email or pushed notifications regarding your account, system updates, or other issues related to your account and may assume that any communications we receive under your account have been submitted by you.
1.2 Acceptable Use. All End Users must comply with the following rules regarding acceptable use of the Services. End Users may not:
- access, tamper with or use non-public areas of the Services, including but not limited to Value Scout’s computer systems or the technical delivery systems of Value Scout or its service providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- “scrape” or otherwise access or search the Services by means other than through Value Scout’s publicly supported interfaces;
- attempt to overwhelm or disrupt the Services or Value Scout’s infrastructure by intentionally imposing unreasonable burdens on our systems (for example, by using automated methods to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time);
- disrupt or interfere with the access of other End Users or any host or network, including, without limitation, by sending a virus, overloading, spamming, mail- bombing or flooding the Services, or by scripting the creation of content in a manner designed to interfere with or create an undue burden on the Services; or
- duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit all or any part of the Service or Site Content or imply; state, directly or indirectly, that you are affiliated with or endorsed by Value Scout; or rent, lease, loan, trade, sell/re-sell access to the Services or any information therein, or the equivalent, in whole or part unless you have entered in to a separate written agreement with Value Scout.
End Users may not utilize the Services to carry out, promote or support:
- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse or deceive others;
- the publishing or dissemination of malicious content intended to damage or disrupt another’s browser or computer;
- the sending of unsolicited communications, promotions, advertisements or spam; or
- activities that are defamatory, libelous, threatening, or that constitute hate speech, harassment or stalking.
In addition to any other remedies that may be available to us, Value Scout reserves the right to take that remedial action we deem necessary, including the immediate suspension or termination of an End User or Customer’s account, upon notice and without liability to Value Scout should Customer or any of its End Users fail to abide by these acceptable use provisions or, if in Value Scout’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. If you are an End User, Value Scout reserves the right to notify your organization and/or the administrator associated with your account with respect to any violation of these Terms.
EACH CUSTOMER AND END USER AGREES TO REVIEW THESE TERMS AND ANY CHANGES THERETO REGULARLY ENOUGH DURING THE PERIOD OF TIME IN WHICH THE USER ACCESSES THE SERVICE TO ENSURE THAT THE USER REMAINS FAMILIAR AND IN COMPLIANCE WITH THESE TERMS OF SERVICE.
2 – Your Content
End Users may create, process, upload, submit, store, send and receive content in connection with their use of the Services (the “Customer Content”). As between Customer and Value Scout, Customer retains all ownership and intellectual property rights in and to that Customer Content and Value Scout shall not be responsible for the Customer Content or the way Customer or its End Users choose to use the Services to store or process any Customer Content. Subject to these Terms, each Customer and End User hereby grants to Value Scout a worldwide, limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export and display the Customer Content as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support and technical issues; (c) to aggregate and de-identify Customer Content for purposes of performing statistical analyses related to Customers and End Users and creating and periodically publishing reports and other materials regarding the results of such analyses; and (d) as expressly permitted by Customer in writing. The right and license granted to Value Scout in this Section shall survive termination of your subscription to the Services for any reason.
3 – Use of Third Party Services in Connection with the Value Scout Services
In the event that Value Scout makes various third-party applications and services available for use in connection with the Services (the “Third Party Services”), your use of such Third Party Services, and any exchange of data between You and the provider of such Third Party Service is solely between you and the third-party service provider. Value Scout does not warrant or support any Third Party Service or other non-Value Scout product or service, regardless of whether such Third Party Service is promoted or made available through our Service or is designated by Value Scout as “certified” or “working with” the Value Scout Service. Customer acknowledges that providers of such Third Party Services may have access to Customer Content in connection with the interoperation and support of such Third Party Services with the Service and that, as between Customer and Value Scout, Customer is solely responsible for reviewing such Third Party Service provider’s practices and policies to ensure that they meet the legal and business requirements of Customer. To the extent Customer authorizes the access or transmission of Customer Content through a Third Party Service, Value Scout shall not be responsible for any use, disclosure, modification, or deletion of such Customer Content by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
4 – Fees
4.1 Fees. The Service is provided on a tiered subscription basis with fees calculated based on your total number of End Users licenses as detailed on your separate Order Form for your subscription for Services (and may be set forth on the pricing page on our website), the terms of which are hereby incorporated into these Terms as operative provisions. Unless a substitute payment mechanism has been agreed to by Value Scout, a valid credit card is required to subscribe to the Service and Customer authorizes Value Scout to charge such fees using Customers selected payment method. Fees are billed in advance and are non-refundable. The number of End User licenses purchased under a subscription cannot be decreased during the applicable term. No credits or refunds will be issued for usage that is less than the purchased number of End User licenses. No adjustments are made for unused time on End User licenses. Your subscription term begins on the date on which you sign up and pay for the Service (the “Subscription Start Date”), regardless of the date on which you are proved with your individual End User licenses.
4.2 Auto Renewal. Customer agrees that its subscription to the Services will automatically renew on an annual or monthly basis (the “Renewal Date”) depending on the term chosen by Customer when subscribing to the Service. Customer hereby authorizes Value Scout to automatically charge Customer the applicable fees on or after each such Renewal Date unless Customer’s subscription to the Service has been terminated or cancelled as set forth in these Terms.
4.3 Calculation of Fees. Fees are based on annual or monthly periods that begin on Customer’s Subscription Start Date and end on the annual or monthly anniversary thereof (depending on whether Customer chooses an annual or monthly subscription). Customers are required to purchase a subscription for each End User and may add additional End Users to their account at any time by adding licenses through the application or notifying Value Scout at billing@Getvaluescout.com. Value Scout reserves the right to review the total number of End Users associated with Customer’s account from time to time and, if the number of End Users exceeds Customer’s current subscription, then Value Scout reserves the right, upon notice to Customer, to invoice Customer for any additional End Users on a pro rata basis for the remaining period of Customer’s subscription term. Value Scout reserves the right to revise fees associated with the Service at any time upon not less than twenty (20) days prior notice to Customer, with such revised fees to be applied to Customer upon Customer’s next monthly or annual subscription term (as the case may be) and with respect to any additional End Users added to Customer’s subscription during the then current monthly or annual subscription term.
4.4 Taxes. All fees are exclusive of all taxes, levies, or duties or similar assessments of any nature, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively “Taxes”). Customer shall be responsible for payment of all such Taxes associated with its purchase of access to the Service, excluding only those taxes that are based on Value Scout’s net income. Should you be required to withhold any Taxes upon payment to Value Scout, you will reimburse Value Scout for such withholding.
4.5 Trial Subscriptions. Value Scout may, in its sole discretion, offer new customers a limited free trial of the Service, subject to these Terms. Notwithstanding anything to the contrary herein, Value Scout shall have the right to terminate a Customer free trial at any time and for any reason. No organization or individual is entitled to receive a free trial and, if a free trial is granted, no organization or individual is entitled to receive more than one (1) free trial of the Service.
4.6 Late Payment. If you fail to make payments when due under these Terms, we may suspend your and your End Users’ access to the Service until payment is received and may charge you a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law, together with our costs incurred in collecting such payment. We are entitled to withhold performance and suspend provision of the Service until all undisputed amounts due are paid in full.
5 – Term and Termination
These Terms shall remain in full force and effect until all Customer subscriptions to the Service have expired, have been terminated or are cancelled. Either party may terminate Customer’s subscription to the Service if the other party: (a) is in material breach of these Terms and fails to cure such breach within twenty (20) days following written notice by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Customer may cancel its subscription to the Service by notifying Value Scout at billing@Getvaluescout.com no later than thirty (30) days prior to the Renewal Date.
Upon expiration, termination or cancellation of Customer’s subscription, Value Scout may immediately deactivate Customer’s account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay fees accrued or payable to Value Scout or of any liability pertaining to Customer’s use of the Service prior to such expiration, termination or cancellation. The following sections shall survive any expiration or termination of these Terms: Sections 7, 8, 10, 13 and 16 and this Section 5.
6 – Value Scout’s Responsibilities
6.1 Providing the Services. Value Scout will make the Services available to Customer and its End Users as described in these Terms.
6.2 Protecting the Customer Content. Value Scout will maintain industry-standard administrative, physical, and technical safeguards designed to prevent unauthorized access, use, modification, deletion or disclosure of the Customer Content and will ensure that third-party service providers utilized by Value Scout in connection with its delivery of the Services do the same.
7 – Confidentiality
7.1 Definition of Confidential Information. In connection with their performance under these Terms, each party may from time to time make certain information available to the other party that is not generally known to the public at the time of its disclosure and is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the terms of any Order Form(s) entered into by the parties, Customer Content, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Service (including but not limited to any security audit), financial information and fee structures, business processes, methods and models, and technical documentation. Confidential information does not include information that: (a) is or becomes publicly available without breach of these Terms by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
7.2 Protection of Confidential Information. Without the express prior written permission of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to any third party any Confidential Information of the disclosing party and will use at least the same degree of care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under these Terms and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth in these Terms. Either party may disclose these Terms to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use that are no less protective than those set forth herein.
7.3 Equitable Relief. The receiving party acknowledges that the remedy at law for breach of these confidentiality provisions may be inadequate and that, notwithstanding the provisions of Section 16.(b) below, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of these confidentiality provisions by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 8 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
7.4 Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, provide the disclosing party with notice in a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If Value Scout is compelled by law to access or disclose Customer’s Confidential Information as part of a civil proceeding to which Customer is a party, Customer will reimburse Value Scout for the reasonable costs of compiling and providing secure access to such Confidential Information.
8 – Value Scout’s Intellectual Property Rights; Rights to Customer Feedback
As between Value Scout and Customer, Value Scout owns all intellectual property rights in and to the Service and any and all analyses, reports, and other materials created by Value Scout as described in Section 2 above using Customer Content, but excluding the Customer Content itself, and all trademarks, logos and service marks utilized by Value Scout in connection with the delivery of the Service. Value Scout grants You a non-sublicensable (unless such rights are expressly granted to You by Value Scout in a separate agreement), non-transferrable, non-exclusive, limited license to use the object code version of the Service solely as necessary to use the Service in accordance with these Terms. All rights not expressly granted by this license are hereby retained by Value Scout and you may not copy, modify, adapt, reproduce, distribute, reverse engineer, decompile, or disassemble any aspect of the Service.
We appreciate and welcome feedback from our customers. By submitting any feedback or suggestions regarding the Service, or sharing such feedback with any representative of Value Scout, You grant to Value Scout an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to You, any End User, or any other Customer personnel.
9 – Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND VALUE SCOUT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. EACH CUSTOMER AND END USER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. VALUE SCOUT DOES NOT WARRANT THAT ANY CUSTOMER’S OR END USER’S ACTIVITIES OR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIM SUCH WARRANTIES. EACH END USER UNDERSTANDS THAT BY USING ANY OF THE FEATURES OF THE SERVICE, THE END USER ACTS AT THE END USER’S OWN RISK, AND THE END USER REPRESENTS AND WARRANTS THAT THE END USER’S ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE THE END USER ACCESSES OR USES THE SERVICE.
10 – Limitation of Liability
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER, CAUSED, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR CUSTOMER’S OR END USER’S USE OF THE SERVICE WILL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (IN THE CASE OF AN END USER, SUCH END USER’S RELATED CUSTOMER) HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. IF A RELEVANT JURISDICTION DOES NOT PERMIT ANY OF THE EXCLUSIONS OF LIABILITY STATED HEREIN, THE EXCLUSIONS SHALL BE AMENDED ACCORDINGLY BUT ONLY TO THE EXTENT NEEDED TO PRESERVE THEIR EFFECT TO THE MAXIMUM EXTENT OF THE LAW IN THAT JURISDICTION.
The provisions of this Section 10 allocate the risk between the parties under these Terms, and the parties have relied on these limitations in determining whether to enter into these Terms.
11 – Export Compliance
The Service may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use any Service in a U.S.- embargoed country or region or in violation of any U.S. export law or regulation. Customer and its End Users shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
12 – Use of the Service Outside of the United States
The Service is controlled and operated by Value Scout from its offices in the United States. Except as explicitly set forth herein, Value Scout makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws. Value Scout may offer services in other jurisdictions that are subject to different terms and conditions. In instances where Customer’s use of the Service occurs from within such jurisdiction, the Value Scout terms and conditions governing that non-U.S. jurisdiction shall take precedence over any conflicting provisions in these Terms with respect to Customer’s use of the Service from within such foreign jurisdiction.
13 – Indemnification Obligations
13.1 Customer’s Indemnification Obligations. Customer will indemnify Value Scout and its subsidiaries, affiliates, officers, employees and agents (the “Value Scout Parties”) from and against any third party claim, action, suit, proceeding or demand arising from or related to Customer’s or any End User’s violation of these Terms and will indemnify the Value Scout Parties for all damages finally awarded against the Value Scout Parties in connection with or as a result of such claim or any amounts paid by Value Scout under a settlement approved by Customer, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. This section states Customer’s sole liability with respect to, and the Value Scout Parties’ exclusive remedy against Customer for, any such claim.
13.2 Value Scout’s Indemnification Obligations. Value Scout will indemnify Customer and its subsidiaries, affiliates, officers, employees and agents (the “Customer Parties”) from and against any third party claim alleging that the Service violates the intellectual property rights of such third party and will indemnify the Customer Parties for all damages finally awarded against the Customer Parties in connection with or as a result of such claim or any amounts paid by Customer under a settlement approved by Value Scout, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. Notwithstanding the foregoing, Value Scout shall not be required to indemnify Customer hereunder to the extent the claim against Customer arises from (a) Customer or any Customer End User’s use of the Service in a manner that violates these Terms; or (b) use of the Service in a modified form or in combination with any third party product, service or content not furnished to Customer by Value Scout.
13.3 Potential Infringement. If the Service becomes, or in Value Scout’s reasonable judgment is likely to become, the subject of a claim of infringement, then Value Scout may in its sole discretion: (a) obtain the right, at Value Scout’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If Value Scout, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Value Scout may suspend or terminate Customer’s use of the Service, in which case Value Scout’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused fees applicable to the remaining portion of Customer’s current subscription term. Subsections (b) above and this subsection (c) state Value Scout’s sole liability with respect to, and Customer Parties’ exclusive remedy against Value Scout for, any infringement claim.
13.4 Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under these Terms only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
14 – Modifications
Value Scout reserves the right to update or modify these Terms from time to time as our business evolves by posting an updated version of these Terms on our website. If, in our sole discretion, we believe that the modifications being made are material, we will notify You (email to suffice) prior to the change taking effect. By continuing to utilize the Service after the effective date of any update to these Terms, Customer will be deemed to have accepted such update.
15 – Beta Access
Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and Service enhancements which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar term (. Customer acknowledges and understands that its participation in such pre-release testing is not required and is at Customer’s own risk, are made available “as is” basis, and may be subject to additional terms related to their use.
16 – Miscellaneous
16.1 Governing Law; Venue. These Terms and any disputes arising under it will be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in or having jurisdiction over Fairfax County, Virginia
16.2 Arbitration. Except as expressly set forth in these Terms, any dispute arising out of or in any way relating to these Terms shall be resolved according to Virginia law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Fairfax County, Virginia unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Value Scout within thirty (30) days of the effective date of these Terms between Customer and Value Scout. Written notice should be sent to the address shown below. If Customer opts out of arbitration, Value Scout will also not be bound to arbitrate. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief in a court of competent jurisdiction as set forth in Section 7. Confidentiality above to stop unauthorized use of any Confidential Information or the Service or infringement of a party’s intellectual property rights. Disputes, claims, or controversies concerning either party’s intellectual property rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration. Value Scout may, in its discretion, resort to any court of competent jurisdiction related to collecting any past due amount from Customer, rather than resort to arbitration. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
16.3 Notices. Value Scout may provide general notices related to the Service that are applicable to all customers via email or in-app notifications and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Other notices (including all notices from Customer) must be sent via email (to, in the case of Value Scout, support@Getvaluescout.com), first class mail, airmail, or overnight courier to the addresses of the parties provided via an Order Form and are deemed given when received. Notices to Value Scout shall be sent to: Value Scout, LLC. Attn: Customer Support/. General questions regarding the Service should be directed to support@Getvaluescout.com.
16.4 Publicity; Use of Customer Marks. Customer grants to Value Scout the right to use Customer’s name and logo in Value Scout’s online customer list and in print and electronic marketing materials.
16.5 Severability; No Waiver. In the event that any provision of these Terms is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- 6 Assignment. Neither these Terms nor any of the rights or licenses granted hereunder may be transferred or assigned by either party without the other party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign these Terms and the End User licenses related to Customer’s subscription for use of the Service upon prior written notice without the other party’s consent to an affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that (a) no such assignment shall relieve the assignor of its obligations or liability under these Terms and (b) should Customer seek to assign these Terms to any direct competitor of Value Scout, then Value Scout shall have the right to terminate these Terms and Customer’s use of the Service upon notice, in which case Value Scout shall provide Customer’s assignee with a pro- rata refund of any prepaid but unused fees. Any other attempt to transfer or assign these Terms or Customer’s subscription to the Service will be null and void. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
16.7 Force Majeure. Neither party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond such party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). The party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the party experiencing such Force Majeure Event shall promptly notify the other party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.
16.8 Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under these Terms or any Order Form. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
16.9 Entire Agreement. These Terms, including all attachments, exhibits, addendums, and any Order Form(s) related hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of these Terms and any Order Form, these Terms shall prevail. No terms or conditions stated in any Customer purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.
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