SCOUTWARE, LLC -
TERMS OF SERVICE
1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE: The Scoutware™ services ("Services") offered by Scoutware, LLC ("Scoutware"), are provided to you ("User") under the terms and conditions of these Terms of Service ("TOS"), and the Scoutware License & Service Agreement ("LSA") between Scoutware and the School/Program ("Licensee" or "Customer"), namely User's employer, university, school, college or sports athletic program. The TOS incorporate by reference any operating rules or policies that may be published by Licensee, the School/Program, any affiliated athletic conference or association, the National Collegiate Athletic Association ("NCAA"), and by Scoutware (the "Governing Rules"). In addition to the LSA between Scoutware and Customer, the TOS comprise the entire agreement between User and Scoutware and supersedes all prior agreements between the parties regarding the subject matter contained herein. BY COMPLETING THE REGISTRATION PROCESS AND/OR USING SCOUTWARE, USER AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS NOT INTENDED FOR USERS UNDER THE 13 YEARS OF AGE.
2. DESCRIPTION OF SERVICE: Scoutware provides User and Licensee with a variety of online email communication services and tools (the "Services"), including but not limited to the capability to have access to and use of Licensee's computer system, Recruiting Database, with authority and permission to draft, author, initiate, send or receive correspondence and emails, generate communications and articles, initiate and receive telephone calls or other forms of contract, arrange and schedule meetings, engage in communication and otherwise communicate with Prospects, recruits, parents, high school coaches and administrators, NCAA and collegiate conference officials, and other interested parties. Scoutware charges the Customer for the Service. In consideration for this Service, User agrees to: use, maintain and update the information as required to keep it current, complete and accurate. All information requested during User's original sign-up shall be referred to as "Registration Data." If any Registration Data provided by User is inaccurate, Scoutware shall not be responsible for any errors related to such data.
3. SCHOOL PURPOSE - NO "SPAMMING" AND OPT-IN COMMUNICATION SYSTEM: User will use the Services for purposes which serve the Program, Licensee, and the School/University authorizing its use. All individual addresses distributed through the Service are from Licensee's confidential Distribution Lists or data-bases. User will not use the Service for chain letters, junk mail, or "Spamming" or make any use of the Program/Licensee Prospect distribution lists in a manner inconsistent with the purposes of the Program or involving any person who has not given specific permission to be included in such a process or a person whom User has not received specific authorization to contact through its Program. Except as permitted by NCAA regulation and the Governing Rules, an e-mail communication which is (a) addressed to a recipient with whom the initiator does not have an existing athletic, scholastic, sports-related business or personal relationship and (b) is not sent at the request of or with the express consent of the recipient to receive such communications from User ("Spam" or "Spamming") is strictly prohibited. If any User uses the Service for Spam, Scoutware reserves the right to immediately terminate User's access to the Service. If any User believes that others are using the Service for Spam, please contact Scoutware Technical Support.
4. NOTICES: Except as provided for in the SLA, Scoutware may give notice to its Users by e-mail, a posting on the site, or other reasonable means. A User must give notice to Scoutware in writing via e-mail or as otherwise expressly provided by Scoutware. Scoutware may broadcast, distribute or display notices or messages through the Service to inform User of changes to the TOS, the Service, or other matters of importance; such broadcast, distributions or displays shall constitute notice to User.
5. MODIFICATIONS TO THE SERVICE AND TO TERMS OF SERVICE: Subject to the terms of the SLA between Scoutware and its Customer, Scoutware may modify or discontinue the Service with or without notice to User. Subject to the terms of the SLA, Scoutware shall not be liable to User or any third party should Scoutware modify or discontinue the Service. Scoutware may change the terms and conditions of the TOS from time to time. Upon any substantive change in the terms and conditions of the TOS, Scoutware may notify User via e-mail, and/or by posting an announcement of the changes and a link to the new TOS on the start-up screen upon User's subsequent use of the Service. User will be asked to review the new TOS. User acknowledges and accepts the TOS by continuing to use the Service.
7. USER ACCOUNT, PASSWORD, AND SECURITY: Once User is authorized by its Program/School for the Service, the User registers for the Service and thereby will receive a password and an account. User is responsible for maintaining the confidentiality of User's password and account. Furthermore, User is entirely responsible for any and all activities that occur under User's account. User may change User's password at any time by following instructions. User agrees to immediately notify Scoutware of any unauthorized use of User's account or any other breach of security known to User.
8. DISCLAIMER OF WARRANTIES: EXCEPT AS SET FORTH IN THE LICENSE AGREEMENT BETWEEN SCOUTWARE AND ITS LICENSEE, USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SCOUTWARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SCOUTWARE MAKES NO WARRANTY THAT THE SERVICE WILL MEET USER REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SCOUTWARE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. USER ACKNOWLEDGES THAT SCOUTWARE DOES NOT CONTROL CONTENT, INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY LICENSE TO SCOUTWARE FROM THIRD PARTIES. EXCEPT AS OTHERWISE AGREED IN WRITING, SCOUTWARE ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, USEFULNESS OR DECENCY OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE SERVICE. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. SCOUTWARE MAKES NO WARRANTY REGARDING ANY TRANSACTIONS, EXCHANGES, PROMISES FOR SERVICES SECURED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM SCOUTWARE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER.
9. LIMITATION OF LIABILITY: SCOUTWARE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF SCOUTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR CONTENT RECEIVED OR TRANSACTIONS ENTERED INTO WITH SCOUTWARE OR A THIRD PARTY (INCLUDING BUT NOT LIMITED TO LICENSEES) THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA. USER SPECIFICALLY AGREES THAT SCOUTWARE IS NOT RESPONSIBLE OR LIABLE TO USER OR ANYONE ELSE FOR ANY UNLAWFUL, HARASSING, DEFAMATORY, ABUSIVE, THREATENING, HARMFUL, VULGAR, OBSCENE, SEXUALLY EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OR SPEECH OF ANY OTHER PARTY ON OR THROUGH THE SERVICE, OR FOR ANY INFRINGEMENT OF VIOLATION OF ANOTHER'S RIGHTS BY ANY OTHER PARTY ON THE SERVICE, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY FROM TIME TO TIME.
10. NO RESALE OR COMMERCIAL USE OF THE SERVICE: ADD COLLEGIATE ATHLETIC PURPOSE - NOT FOR PROFIT USE FOR UNIVERSITY, SCHOOL; User's right to use the Service is personal to User and Licensee. User agrees not to resell or make any commercial use of the Service without the express consent of Scoutware and Licensee.
11. USER CONDUCT: Scoutware reserves the right, but does not assume the responsibility, to monitor or review User conduct on the Service. User's use of the Service is subject to all applicable local, state, national and international laws and regulations.
(1) to comply with U.S. law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes (including without limitation, gambling or betting); (3) not to interfere or disrupt networks connected to the Service; and (4) to comply with all regulations, policies and procedures of networks connected to the Service. The Service makes use of the Internet to send and receive certain messages; therefore, User's conduct is subject to Internet regulations, policies and procedures.
User agrees not to:
* Use the Service in connection with chain letters, junk mail, surveys, contests, pyramid schemes, or any use of distribution lists to any person who has not given specific permission to be included in such a process (commercial or otherwise);
* Harvest or otherwise collect information about others, including e-mail addresses, without their consent;
* Transmit through the Service any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit, or otherwise objectionable material of any kind or nature;
* Invade another's privacy or violate rights of publicity or intellectual property rights (including but not limited to copyright, trademark and patent rights) while using the Service;
* Transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
* Interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services;
* Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
* Publish, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information;
* Advertise or offer to sell or buy any goods or services for any non-personal purpose;
* Create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message;
* Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a user of the Service any directory of Scoutware's users or other user or usage information or any portion thereof other than in the context of User's use of the Service as permitted under the TOS;
* Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
* Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
* Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or
* Engage in any other conduct which, in Scoutware's sole discretion, is considered unauthorized or objectionable.
12. CONTENT: User and Licensee are responsible for any data, text, software, photographs, graphics, messages, files or other materials ("Content") which is transmitted, posted, or distributed by User through the Service, including but not limited to the contents of User's e-mail communications and photos posted by User on Scoutware or through the Service. All Content whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Content originated. This means that User, and not Scoutware, is entirely responsible for all Content that User uploads, posts, e-mails or otherwise transmits via the Service. Scoutware does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. User understands that by using the Service, User may be exposed to Content posted by other users that may be offensive, indecent or objectionable. Under no circumstances will Scoutware be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed or otherwise transmitted via the Service.
13. INDEMNIFICATION: User agrees to indemnify and hold Scoutware, its principals, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User's use of the Service, the violation of this TOS by User, or the infringement by User (or other user of the Service using User's computer) of any intellectual property or other right of any person or entity, including Scoutware.
14. TERMINATION: Either party may terminate the Service with or without cause at any time and effective immediately upon written notice to the other party. Scoutware may terminate the Service or User's use of the Service with or without cause at any time and effective immediately, at Scoutware's sole discretion, including but not limited to immediate termination of Licensee's use of the Service should Licensee's or User's conduct fail to conform with these terms and conditions of the TOS, including but not limited to the terms of conduct set forth in Section 11. Scoutware shall not be liable to User or any third party for termination of Service. Should User object to any terms and conditions of the TOS or any subsequent modifications thereto or become dissatisfied with the Service in any way, User's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service registration; and (3) notify Scoutware of termination. Upon termination of the Service, User's right to use the Service and Software shall cease immediately. User shall have no right and Scoutware will have no obligation thereafter to forward any unread or unsent messages to User or any third party. Sections 8, 9, and 12 - 19 shall survive termination of the TOS.
15. USER ACKNOWLEDGES that content, contained in either sponsor advertisements or distributed via e-mail, of a commercial nature and presented to User by the Service by Scoutware or Scoutware's Licensees ("Scoutware Content" or "Licensee Content"), is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. User is permitted to use the Scoutware Content or Licensee Content as expressly authorized by the Scoutware or the Licensee. User may not copy, reproduce, distribute, or create derivative works from the Scoutware Content or Licensee Content without expressly being authorized to do so by Scoutware or Licensee. User may make a copy of the Scoutware Content or Licensee Content for User's personal, noncommercial use only, provided that User keeps all copyright or other proprietary notices intact.
17. GENERAL PROVISIONS: The TOS shall be governed by and construed in accordance with the laws of the state of Illinois, excluding its conflict of law provisions. User and Scoutware agree to submit to the exclusive jurisdiction of the courts of the state of Illinois, provided, however, that either party may elect to settle any litigation in any way arising out of or relating to the TOS by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. If elected, such arbitration shall be conducted in Chicago, Illinois, and judgment on the arbitration award may be entered into in any court having jurisdiction thereof. If any provision(s) of the TOS is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Scoutware's failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Scoutware in writing. User and Scoutware agree that any lawsuit arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The section titles in the TOS are solely used for the convenience of the parties and have no legal or contractual significance.
18. LANGUAGE: Scoutware makes no representation that materials on the
Service are appropriate or available for use in locations outside of the
United States, and access to them from territories where their content
is illegal or otherwise regulated is prohibited. Those who choose to access
this Site from other locations do so on their own initiative and are responsible
for compliance with applicable local laws.