Terms of Service
This Video Game Data Platform Application and License Agreement (“Agreement”) is entered into by and between Scout Gaming, Inc. (“Scout”) and you, and your affiliates (“Customer”) on the day that your account is approved for access to the Scout Platform by Scout (the “Effective Date”).
- Scout has developed and makes available for use online video game data, online advertising, computer applications (collectively, the “Scout Platform”) which allows its customers to consume video game related data including statistics and player profiles, as well as online advertising displayed by Scout Apps.
- Scout allows Customer to build websites and mobile applications for the purpose of displaying content to other Customers using the Scout Platform (“Scout Apps”)
- Customer desires to license from Scout the right to use the Scout Platform in accordance with the terms and conditions set forth herein.
NOW, THERFORE, the parties hereto, in consideration of the mutual covenants and agreements contained herein and other good valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows:
- LICENSE; SERVICES. Subject to the terms and conditions of this Agreement, Scout hereby grants to Customer a non-exclusive and non-transferable license to use the Scout Platform subject to the terms of this Agreement and Customer hereby accepts such license.
- APPLICATION INFORMATION. This Agreement is not effective until Customer has been approved by Scout, and the Agreement has been executed by both parties.
- USE. Customer use of the Scout Platform is limited to the purpose of creating or using Scout Apps. Scout Apps created by Customer are permitted to enhance, display, aggregate, translate, modify, rearrange statistics data provided by the Scout Platform. No other license or right to use, resell, lease, sublicense the Scout Platform into any other product or service has been granted under this Agreement. Customer agrees to not, transfer, dispose reverse engineer, decompile or disassemble the Scout Platform, in whole or in part, except for the lawful purposes expressly permitted by this Agreement without the prior written permission of Scout. .
- TERM. This Agreement will become effective as of the Effective Date set forth above and, unless sooner terminated as provided in this Agreement, shall continue for a period of twelve (12) months (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive twelve month periods unless one of the parties has notified the other of its election to terminate the Agreement at least thirty (30) days in advance prior to the end of the then expiring term.
- PRICING; BILLING; PAYMENT. The Scout Platform will be provided to Customer at the prices set forth as follows:
Plan Price Regular user Free Scout app with ad-share 20% of gross ad revenue
- PRICING. The prices set forth are subject to change, from time to time upon thirty (30) days’ advance written notice to Customer, which notice will be given via e-mail at the address provided by Customer.
- PAYMENT. Upon execution of this Agreement Customer shall provide upon request Service Provider with an accepted payment method on file. Scout accepts the following payment methods: ACH, PayPal, major credit cards; MasterCard, Visa, or American Express. Service Provider will collect on any invoices outstanding for more than fifteen days (15) days. Customer will be billed via e-mail on the first of each month and Scout shall charge Customer on the first day of each month utilizing Customer’s credit card on file with Scout. If Customer’s credit card on file does not accept the charge from Scout, or if Customer does not have a credit card on file, then Scout may suspend Customer’s account until payment has been made. At its option, Scout may invoice customer on the first day of each month for Scout Platform services delivered during the previous calendar month. All invoices are due ten (10) business days from receipt.
- TAXES. Customer is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, value-added taxes, and similar taxes and duties) resulting from Customer’s use of the Scout Platform, excluding, however, any taxes payable by Scout as a result of income earned. Customer shall pay any such taxes as invoiced by Scout. Customer shall hold harmless Scout from all claims and liability arising from Customer’s failure to appropriately pay such taxes.
- INDEMNIFICATION. Customer shall indemnify and hold Scout, and its officers, directors, employees, and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) any breach of Customer’s representations, warranties and covenants contained herein, and (ii) Customer’s use of the Scout Platform.
CUSTOMER’S REPRESENTATIONS AND WARRANTIES.
Customer represents and warrants to Scout that:
- Customer’s use of the Scout Platform will not violate any agreement or obligation between Customer and any third party.
- Customer will use the Scout Plaform in compliance with Applicable Law and regulation including but not limited to all privacy law and data protection laws and the terms contained in this Agreement.
- No information delivered by Customer to Scout under this Agreement will infringe on any copyright, patent, trade secret or other proprietary right held by any third party or constitutes a violation of Applicable Law.
- When executed and delivered by Customer, this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable in accordance with its terms.
- It shall only provide access to the Scout Platform to enable Customer to use the Scout Platform in accordance with this Agreement.
SCOUT’S REPRESENTATIONS AND WARRANTIES.
Scout represents and warrants to Customer that:
- When executed and delivered by Scout, this Agreement will constitute the legal, valid, and binding obligation of Scout, enforceable in accordance with its terms.
PERMITTED USES AND RESTRICTIONS.
- Customer represents and warrants that it will not use the Scout Platform in a way that violates any federal, state or local statute, regulation, rule or other governmental mandate (collectively, the “Applicable Laws”).
- Under no circumstances may Customer use the Scout Platform for any illegal or unethical purposes, including, without limitation, for the purpose of intimidating, stalking or harassing any person or entity.
- Customer agrees and acknowledges that the Scout Platform is and remains the exclusive property of Scout and that Customer has not acquired any interest, title, or right in or to the Scout Data except as specified herein.
- Customer shall implement appropriate administrative, physical, technical and organizational measures, policies and procedures to protect the Scout Platform and the information contained therein against accidental loss, unauthorized alteration, disclosure or access and other unlawful forms of processing.
- Customer will provide all reasonable assistance to allow Scout to monitor and audit Customer’s compliance with this Agreement and to otherwise enable Scout to comply with its obligations to third parties (including but not limited to government agencies and data providers).
- FORCE MAJEURE. To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; outages, a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance), such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination. The provision of the Scout Platform may be contingent on data sources supplied by third parties, and the Scout Platform may need to be unilaterally amended at any time without prior notice if necessary to comply with such third party obligations.
- NOTICES. Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on receipt and shall be considered properly given if in writing and delivered personally or faxed with confirmation or sent by any commercially reasonable means or receipted delivery, addressed, with respect to Customer, to the address of Customer most recently provided in writing to Scout, and with respect to Scout, via US mail, overnight packages and email to the address of Scout appearing on its web site at the time of such notice.
- TERMINATION. Scout shall have the right to terminate this Agreement prior to expiration of its term upon thirty (30) days prior written notice. Upon termination of this Agreement, all license rights granted to Customer hereunder will terminate and all unpaid fees shall be due and payable immediately.
- OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Scout Platform, or otherwise used to perform services for Customer (or any of its affiliates) hereunder, are and will remain the sole and exclusive property of Scout, whether or not specifically recognized or perfected under Applicable Law. Scout shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the existing Scout Platform or any new programs, upgrades, modifications or enhancements developed by Scout in connection with rendering any services to Customer (or any of its affiliates), even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Scout by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its affiliates to transfer and assign) to Scout all rights, title, and interest which Customer or any of its affiliates may have in and to such refinements and improvements.
- LIMITATION OF LIABILITY. Neither party shall be liable to the other party hereto or to any third party for any incidental, consequential, or special damages of any kind or nature, including without limitation, lost profits, loss of data, or frustration of business expectations, whether arising out of such party’s breach of contract, breach of warranty, negligence, or otherwise (even if such party has been advised of the possibility of such loss or damage). Neither party shall assert any such claim against the other or its subsidiaries or affiliated companies or their respective officers, directors, or employees. Scout’s maximum liability hereunder for any claims whatsoever is expressly limited to the amount paid under this Agreement by Customer to Scout during the 3-month period immediately preceding the cause giving rise to the claim, if any. No claim may be brought by Customer or any of its affiliates under this Agreement more than one year after the facts giving rise to the claim.
- DISCLAIMER OF WARRANTIES. Except as otherwise specifically provided herein, the Scout Platform is provided hereunder by Scout “as is” without warranty of any kind. Except as otherwise specifically provided herein, to the maximum extent permitted by law, Scout expressly disclaims any and all warranties, conditions, representations, and guarantees with respect to the Scout Platform, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty or merchantability, fitness for a particular purpose or non-infringement. Scout makes no representation or other affirmation of fact, including, without limitation, statements regarding accuracy, completeness correctness, capacity, suitability for use or performance of the Scout Platform, whether made by employees of Scout or otherwise, which is not contained in this Agreement, shall be deemed to be a warranty by Scout for any purpose, or give rise to any liability of Scout whatsoever.
- GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to any jurisdiction’s conflict of laws principles, and all proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in the State of Delaware. Customer hereby consents to personal jurisdiction and venue therein and hereby waives any right to object to personal jurisdiction or venue.
- ATTORNEY FEES. In the event either party hereto shall resort to legal action for the redress of a breach of this Agreement, the prevailing party shall be entitled to an award of all costs and reasonably attorney fees.
- WAIVER. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The failure of a party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by one of both of the parties of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
- ASSIGNMENT. The Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party except to a party into which it has merged or which has otherwise succeeded to all or substantially all of the assets or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor’s obligations under this Agreement.
- INVALID PROVISIONS; SEVERABILITY. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions in any other jurisdiction.
- ENTIRE AGREEMENT; GENERAL. This Agreement represents the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior of contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule or strict construction against either party shall apply to licenses granted herein or to any term or condition of this Agreement. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement. Transmission of an electronic counterpart signature for this Agreement by any such electronic method as is established by Scout shall take effect as delivery of an executed counterpart of this Agreement.