Flex Benchmarks Terms of Service
March 1st, 2024
PLEASE READ THESE TERMS OF SERVICE (“TERMS”) BEFORE USING THE SERVICE OFFERED BY SCOOP TECHNOLOGIES, INC. (“SCOOP”). THESE TERMS ARE BETWEEN SCOOP AND THE ENTITY ON WHOSE BEHALF THE INDIVIDUAL ACCEPTING THIS AGREEMENT ACCEPTS THIS AGREEMENT (“CUSTOMER”), AND BY CREATING AND CONFIGURING AN ACCOUNT FOR THE SERVICE, WHERE CUSTOMER CLICKS “I ACCEPT” VIA SCOOP’S STANDARD ONLINE PROCESS, CUSTOMER AGREES TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS, IT SHALL NOT USE THE SERVICE. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
The Scoop Services include an online benchmarking platform for assessing, publishing, and sharing information relating to companies regarding their flexible work policy, real estate, and HR metrics to enable company leaders to assess their investments and policy decisions relative to their peers (“Flex Benchmarks”). All of the aforementioned, along with any information, documents and materials uploaded, posted, imported or stored through a customers’ use of the Services (all of the foregoing, including Customer Data (as defined below), is referred to in these Terms as “Content”). Section 4 of these Terms sets forth certain terms and license rights with respect to Content.
There are two types of customers depending on the Scoop Services purchased, accessed or subscribed for in connection with this Agreement:
“Subscribers,” who are customers that have subscribed for paid services from Scoop in one or more Order Forms or other agreements. The scope of Services provided to Subscribers is limited to those services and access rights set forth on the applicable Order Form. In the event of any discrepancy between these Terms of Service and the terms of the Order Form, the terms of the Order Form shall govern.
“Authorized Users,” are individual users who have been authorized to access the Services on behalf of a Subscriber. The scope of Services for Authorized Users is governed in the same manner as the Subscriber on whose behalf such Authorized User is accessing the Services.
Subscribers and Authorized Users are referred to in these Terms of Service (whether they be an individual, company, business, corporation, or other entity) as Customers. Scoop and Customer are each referred to herein as a “Party” and together as the “Parties.”
1. Scope of Service; Term
1.1. Upon mutual execution (the “Effective Date”), each Order Form shall be incorporated into and form a part of the Agreement. An “Order Form” shall mean Scoop’s standard online process, through which the Customer has registered online for the Service, and the results of such online process. Subject to Customer’s compliance with the terms of this Agreement (including limitations set forth on an Order Form), during the Term (defined below) Scoop grants Customer a limited, non-exclusive, non-transferable license to access and use the Services for Customer’s internal business purposes in accordance with the terms of this Agreement. Scoop will use commercially reasonable efforts to provide the Services and will notify Customer if the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance.
1.2. Scoop reserves all rights not expressly granted in and to the Services.
1.3. Customer agrees not to use the Services for any unlawful purpose or in any way that violates this Agreement. Any use of the Services in violation of this Agreement may result in, among other things, termination or suspension of Customer’s account and ability to use the Services. Customer may not engage in any of the following prohibited activities: (a) directly or indirectly, reverse engineer, decompile, disassemble, separate or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) copy, distribute, convey, or disclose any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (c) collect or harvest any personally identifiable information, including account names, from the Services; (d) modify, adapt, translate, or create derivative works based on the Services or the Software; (e) transfer, sell, lease, lend, or use the Services or any Software for cobranding, timesharing or service bureau purposes or otherwise for the benefit of a third party; (f) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services, or access any content or features of the Services through any technology or means other than those provided or authorized by the Services; (g) transmit spam, chain letters, or other unsolicited email; (h) intentionally or knowingly engage in any activity that interferes with or disrupts the Services or servers or networks connected to the Services; (i) remove, deface, obscure, or alter any proprietary notices or labels; (j) intentionally or knowingly use the Services in any manner in violation of any applicable laws; (k) attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services; upload invalid data, viruses, worms, or other software agents through the Services; bypass the measures Scoop may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Services or the content or features therein; (l) impersonate another person or otherwise misrepresenting Customer’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Customer’s identity; or (m) access, distribute, or use for any commercial purposes any part of the Services or any services or materials available through the Services.
1.4. The “Term” of the Services shall be for the Order Form Term (defined below). With respect to an Order Form, the “Order Form Term” means, except as otherwise agreed to, and except as otherwise earlier terminated in accordance with these Terms, (i) the period commencing on the effective date set forth in such Order Form and continuing for the initial term set forth therein (the “Order Form Initial Term”), and (ii) additional successive renewal terms of twelve (12) months to the Initial Order Form Term (each, a “Order Form Renewal Term”), unless either party gives notice of nonrenewal at least sixty (60) days prior to the end of the Order Form Initial Term or Order Form Renewal Term (as applicable). Either Scoop or Customer may terminate this Agreement for cause if the other Party materially breaches this Agreement, and such breach remains uncured within fifteen (15) days after receipt of written notice. If Customer terminates this Agreement for cause in accordance with the foregoing subsection, Scoop will promptly refund to Customer any prepaid Fees, prorated for the unused portion of the Term. Without limiting the foregoing, Scoop may suspend or limit Customer’s access to or use of the Service if Customer’s account is more than thirty (30) days past due.
1.5. Upon the termination or expiration of this Agreement, all rights and licenses granted by Scoop to Customer shall immediately cease (except as set forth in this Section). Customer Data will continue to be accessible via the Scoop platform until Customer deletes such data; provided, however, Scoop may retain copies of Customer Data: (i) in order to comply with applicable law, regulation or professional standards; (ii) on servers or back-up sources if such Customer Data is deleted from local hard drives and no attempt is made to recover such Customer Data from such servers or back-up sources, and/or (iii) as set forth in Section 4.2.
1.6. Customer is entirely responsible for maintaining the confidentiality of its password and account, as well as any activities that occur under its account. Customer agrees to notify Scoop immediately of any known or suspected unauthorized use of its username and password or any other breach of security. Customer, and not Scoop, will be liable for any loss that Customer, Scoop and any other party may incur as a result of someone else using Customer’s username, password, or account, only in the event and to the extent that such use is either permitted by Customer or is a result of Customer’s failure to maintain the confidentiality of Customer’s password and account information. Customers may not use anyone else’s account at any time, without the written permission of the account holder. Customer’s account is unique to Customer and may not be transferred to any third party. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like
1.7. The Scoop Services may be modified by Scoop in its discretion from time to time; provided that such modifications will provide reasonably comparable levels of support and functionality.
2. Account Registration
2.1. Prior to using the Services, Authorized Users must complete the account registration process by providing Scoop with current, complete and accurate information prompted by the applicable registration form. Authorized User agrees to register only once using a single username and agree it will not (a) register on behalf of another person; (b) register under the name of another person or under a fictional name or alias; (c) choose a username that constitutes or suggests an impersonation of any other person (real or fictitious) or entity or that Authorized User is a representative of an entity when it is not, or that is offensive; (d) choose a username for the purposes of deceiving or misleading users and/or Scoop as to Authorized User’s true identity; or (e) choose a username that incorporates a solicitation. Authorized User agrees to maintain and update any account registration information to keep it true, accurate, current and complete. If any information provided by Authorized User is untrue, inaccurate, not current, incomplete, or otherwise violates the restrictions as set forth above, Scoop has the right to terminate Authorized User’s account and refuse any and all current or future use of the Services.
3. Fees
3.1. Customer will pay Scoop the Service Fee as described in the Order Form and any other fees as set forth herein in accordance with the terms of this Agreement (the “Fees”). Except as otherwise specified herein or in an Order Form, payment obligations to Scoop are non-cancelable and fees paid are non-refundable. Any refunds provided hereunder will be made to the entity that paid the applicable Fees to Scoop and, if applicable, Customer will look solely to the authorized partner or reseller to recover the same.
3.2. To the extent that any Order Form sets forth specific payment terms for the Fees, such terms will control over any inconsistency with this Section 3.2. Fees shall be paid within thirty (30) days of the execution of the Order Form.
3.3. If Customer believes that Scoop has billed it incorrectly, it must contact Scoop no later than 30 days after the date the applicable payment method was charged to receive an adjustment or credit. Except as otherwise specified in an Order Form between Scoop or the applicable authorized partner or reseller, unpaid amounts will be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection and may result in immediate termination or suspension of the Services. All Fees and other amounts payable under this Agreement are exclusive of taxes and similar assessments.
4. Content; Feedback
4.1 This Section sets forth certain terms and license rights with respect to Content which Scoop requires in order to provide the Services (collectively, “Platform Content”):
Content Type
As a condition to Customer’s use of the Services, Customer agrees to update and revise all Benchmark Content every seven (7) months to ensure that all such provided information to the Services is current, complete and accurate. If Customer does not update Benchmark Content every seven (7) months, Customer will temporarily be unable to access Flex Benchmarks until their Content is updated.
4.2. Customer may delete Customer Data from Scoop as set forth in Section 1.5. However, Customer agrees that to the extent the Benchmark Content has previously been aggregated and anonymized for sharing with other users, such Content may be retained by Scoop for the purpose of continuing to provide access to such Content to such users (and the licenses set forth herein will continue for so long as such access is provided).
4.3. In furtherance of the foregoing, and notwithstanding anything else, Customer hereby grants Scoop the following licenses:
(a) For all Platform Content, Customer hereby grants Scoop a license to display, perform, translate, modify (for technical purposes, for example, making sure Content is viewable on a mobile device), distribute, retain, reproduce and otherwise act with respect to such Content (collectively, “Use”), in each case to enable Scoop to provide the Services.
(b) For Benchmark Content, Customer additionally grants Scoop a license to Use such Content such that the Content is accessible in an aggregated and anonymized form to all paying subscribers of the Services. For clarity, Scoop will not publish, share, or display Customers’ Benchmark Content to other Scoop Customers or third parties in a manner that is attributable back to the Customer. Also, Customer grants all other users of the Services a license to Use that Benchmark Content in an aggregated and anonymized form as permitted by the functionality of the Services.
(c) For Flexible Work Policy Content, Customer additionally grants Scoop a license to Use such Content for the purpose of making that Content accessible to all subscribers of the Services. Also, Customer grants all other users of the Services a license to Use that Flexible Work Policy Content as permitted by the functionality of the Services.
Customer agrees that the licenses granted in this Section 4.3 are royalty-free, sublicensable, irrevocable, and worldwide, and will in each case last for a period consistent with the applicable license purposes set forth above.
4.4. Customer is responsible for all Content uploaded, posted or stored through Customer’s use of the Services. Scoop is not responsible for any lost or unrecoverable Content other than as a result of Scoop’s gross negligence or willful misconduct. Although Scoop has no obligation to monitor the Content or Customer’s use of the Services, Scoop may, in its sole discretion, remove any Content, in whole or in part, or prohibit any use of the Services alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement, including in response to inaccurate Customer Content being shared.
4.5. From time to time, Scoop may provide opportunities for users to voluntarily submit feedback and ideas for improvements related to the Services. Customer agrees that (a) its feedback and expression of its ideas and/or improvements will automatically become the property of and owned by Scoop; (b) Scoop may use or redistribute Customer’s feedback and its contents for any purpose and in any way and without any restrictions, except that Scoop agrees to keep the name of the Customer associated with such feedback confidential; (c) there is no obligation for Scoop to review any feedback; (d) there is no obligation to keep any feedback confidential; and (e) Scoop shall have no obligation to Customer or contract with Customer, implied or otherwise. By providing feedback or ideas, Customer acknowledges and agrees that Scoop and its designees may create on its own or obtain many submissions that may be similar or identical to the feedback or ideas that Customer submits through the Services or other channels and means. Customer hereby waives any and all claims it may have had, may have, and/or may have in the future, that the submissions accepted, reviewed and/or used by Scoop and its designees may be similar to Customer’s feedback or ideas.
5. Confidentiality; Proprietary Rights
5.1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Scoop includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of each Customer includes non-public data about that Customer provided by that Customer to Scoop (“Customer Data”), Content, and any data or information derived from Customer’s use of the Services. For the avoidance of doubt, Customer Data shall not include Aggregated Anonymous Data (as defined below in Section 5.5) or any data, information or content uploaded by third parties other than Customer. The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and, except to use or perform the Services or as otherwise permitted herein, not to use or divulge to any third person any such Proprietary Information; provided, however, the Receiving Party may disclose Proprietary Information to its contractors and/or agents who have a legitimate need to know the Proprietary Information and who are bound by obligations of confidentiality at least as stringent as those contained herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public through no action of the Receiving Party in violation of this Agreement, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
5.2. The Parties hereby acknowledge and agree that any breach of or default of a Party’s obligations of confidentiality under this Agreement shall cause damage to the other Party in an amount difficult to ascertain. Accordingly, in addition to any other relief to which a Party may be entitled, the non-defaulting Party shall be entitled, without proof of actual damages, to seek any injunctive relief ordered by any court of competent jurisdiction including, but not limited to, an injunction restraining any violation of the defaulting Party’s obligations of confidentiality hereunder.
5.3. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Proprietary Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its right to confidentiality pursuant to the terms of this Agreement; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 3, the Receiving Party remains required by law to disclose any Proprietary Information, the Receiving Party shall disclose only that portion of the Proprietary Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Proprietary Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Proprietary Information so disclosed.
5.4. Customer shall own and retain all right, title and interest in and to its Proprietary Information, including the designs, trademarks, service marks, and logos of Customer. Scoop shall own and retain all right, title and interest in and to its Proprietary Information, including (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the any professional services or support, (c) all intellectual property rights related to any of the foregoing, and (d) the designs, trademarks, service marks, and logos of Scoop and the Services, whether owned or licensed to Scoop.
5.5. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Scoop shall have the right (during and after the Term) to use Customer Data for its internal business purposes to improve and enhance the Services, and to generate “Aggregated Anonymous Data,” which shall mean any data submitted to, collected by, or generated by Scoop in connection with Customer’s use of the Service, including Customer Data, but only in an aggregated form that avoids identification of Customer. For any Aggregated Anonymous Data, Scoop shall freely use, retain and make available Aggregated Anonymous Data for Scoop’s purposes of improving, testing, operating, promoting and marketing Scoop’s features, products and services (which may include compiling and generating statistical information in the form of industry-specific benchmarks, reports, analyses, and other comparative metrics), and other development, diagnostic and corrective purposes in connection with the Services and Scoop’s other offerings. Any rights not expressly granted herein are deemed withheld.
5.6 Scoop will (i) maintain industry-standard technical and organizational measures to secure Customer Data against unauthorized and unlawful loss, access or disclosure, (ii) maintain physical, electronic and procedural safeguards in compliance with applicable privacy laws, including, but not limited to: (a) the maintenance of appropriate safeguards to restrict access to Customer Data to the employees, agents, licensors or service providers of Scoop who need that information to carry out Scoop’s obligations under this Agreement; (b) procedures and practices for safe transmission or transportation of the Customer Data; and (c) the maintenance of appropriate safeguards to prevent the unauthorized access of the Customer Data.
6. Warranty and Disclaimer
6.1. Each Party hereby represents, covenants, and warrants that: (a) it shall comply with all applicable laws and regulations during the Term of this Agreement; (b) it has the full right and authority to enter into this Agreement; (c) the performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (d) this Agreement constitutes a legal, valid and binding obligation when agreed to. Customer further represents and warrants that it owns or has the necessary licenses, rights, consents, and permissions to publish and submit the Content and Customer Data. Customer further agrees that the Content and Customer Data it submits to the Services will not contain third party copyrighted material, or material that is subject to other third-party proprietary rights, unless Customer has permission from the rightful owner of the material or Customer is otherwise legally entitled to post the material and to grant Scoop all of the license rights granted herein.
6.2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1, THE SERVICES ARE PROVIDED “AS IS.” SCOOP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. WITHOUT LIMITING THE FOREGOING, SCOOP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY RESULTS OF THE USE OF THE SERVICES, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
7. Indemnification
7.1. Customer shall indemnify, defend, and hold harmless Scoop and Scoop’s officers, directors, employees, agents, permitted successors and assigns (each, a “Scoop Indemnitee”) from and against any and all liabilities, claims, damages, losses and expenses (including reasonable attorneys’ fees) (“Claims”) incurred by Scoop Indemnitee resulting from an action or claim by a third party (other than an affiliate of Scoop Indemnitee) arising out of or related to: (a) Customer Data, or (b) Customer’s violation of Section 1.3, or of any terms of use or similar terms with respect to any Third-Party Sites, Third-Party Links, or Third-Party Content.
7.2. The obligations of Customer under this Section 7 shall be conditioned on Scoop providing (i) prompt notice of any claim for which indemnification is sought (provided that a failure to provide prompt notice shall not relieve Customer of its obligations hereunder except to the extent the Customer is prejudiced by such failure), (ii) the option to assume sole control of the defense of the claim and all negotiations for any settlement or compromise (provided that (A) Scoop is entitled to participate in its own defense at its sole expense, and (B) any settlement or compromise cannot obligate Scoop in any manner without its prior written consent, which consent will not be unreasonably withheld), and (iii) reasonable assistance in connection with such claim at Customer’s expense.
8. Limitation of Liability
8.1. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 1.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, REVENUES, ANTICIPATED SALES OR SAVINGS, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY PRODUCTS, THIRD-PARTY SITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 1.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE SERVICES, THIRD-PARTY PRODUCTS, THIRD-PARTY SITES, OR THIRD-PARTY CONTENT MADE AVAILABLE THROUGH THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID (AND ANY AMOUNTS ACCRUED BUT NOT YET PAID) BY CUSTOMER TO SCOOP IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Miscellaneous
9.1. Survival. The following Sections 1.5, 4-9 of this Agreement will survive the termination or expiration of this Agreement.
9.2. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.3. Assignment. This Agreement is not assignable, transferable or sublicensable by either Party except with the other’s prior written consent; provided that either Party may assign this Agreement in the event of a merger, sale of substantially all of the stock, assets or business, or other reorganization involving the assigning Party.
9.4. Force Majeure. In the event that either Party hereto shall be delayed or hindered or prevented from the performance of any act required hereunder, other than a payment obligation, by reason of strikes, lock-outs, labor troubles, inability to procure materials or services, failure of power, riots, insurrections, pandemics, war or other reasons of a like nature not the fault of the Party delayed in performing work or doing acts required under the terms of this Agreement, such Party shall immediately provide notice to the other Party of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
9.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
9.6. Modification. Scoop may revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when made available on this website and will apply to all access to and use of the Services thereafter. Customer’s continued use of the Services following the posting of revised Terms means that Customer accepts and agrees to the changes.
9.7. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement.
9.8. Third-Party Sites. The Services may contain links to third-party advertisers, websites or services (“Third-Party Sites”). Customer acknowledges and agrees that Scoop is not responsible or liable for: (i) the availability or accuracy of such Third-Party Sites, or (ii) the content, products, or resources on or available from such Third-Party Sites. Any Third-Party Sites do not imply any endorsement by Scoop of those websites or services. If Customer decides to access any of the Third-Party Sites linked to the Services, Customer does so at its own risk and subject to the terms and conditions of use for such Third-Party Sites and acknowledges sole responsibility for and assumes all risk arising from its use of any such Third-Party Sites.
9.9. Third-Party Products and Third-Party Content. In connection with the Services, Customer may purchase and have access to or use applications, integrations, software, services, systems, or other products not developed by Scoop (“Third-Party Products”), or data/content derived from such Third-Party Products or arising out of an agreement between Scoop and such third-party (collectively, “Third-Party Content”). Scoop does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Scoop as verified or integrated with the Services) and disclaims any and all responsibility and liability for these items and their access to or integration with the Services, including their modification, deletion, or disclosure.
9.10. Publicity. Scoop shall have the right to display Customer’s logo and name on Scoop’s website as a customer of Scoop. Customer may ask for Scoop to remove Customer’s logo and name from Scoop’s website.
9.11. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Any notices to Scoop may be sent to flexindex@scoopforwork.com.
9.12. Governing Law. This Agreement shall be governed by the laws of the State of New York without reference to conflict of law principles.
Broker Partner Agreement Terms
PLEASE READ THIS REFERRAL AGREEMENT CAREFULLY BEFORE SIGNING UP TO BE A PARTNER OF SCOOP TECHNOLOGIES, INC. (“SCOOP”). BY SIGNING UP TO BE A PARTNER VIA SCOOP’S WEBSITE, YOU (“REPRESENTATIVE”) AGREE TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Definitions.
- “Flex Benchmarks” means Scoop's product where customers can benchmark their office requirements, real estate metrics, and HR metrics against relevant segments to inform their real estate and flexible work strategy.
- “Customer” means a third party referred by Representative to Scoop via a valid Referral Code who enters into a written Customer Agreement with Scoop.
- “Customer Agreement” means the contract by which Scoop agrees to supply a Customer access to Flex Benchmarks.
- “Net Revenue” means the fees actually received by Scoop under a Customer Agreement for Flex Benchmarks, exclusive of: (a) sales, excise and similar taxes; (b) returns, refunds, allowances, discounts and adjustments; and (c) amounts attributable to third party products, applications or integrations offered by Scoop, training, professional services, annual renewals, overages, or additional purchase of Scoop or third party services. For clarity, Net Revenue does not include any fees Scoop receives from a Customer for any products or services other than Flex Benchmarks.
- “Prospect” means a Representative customer or other contact who may be interested in Flex Benchmarks.
- “Referral Code” means the unique code provided by Scoop to Representative used to identify Prospects as being referred by Representative.
- “Referral Fee Percentage” means 10%.
- “Territory” means worldwide.
- "Partner Discount" means 10%.
- Referrals and Obligations. some text
- Referrer Relationship. Subject to the terms and conditions of this Agreement, Scoop hereby grants Representative the right to promote and refer Prospects to Scoop on a nonexclusive basis in the Territory and to provide the Referral Code to such Prospects for use when signing up for Flex Benchmarks.
- Referral Code. Scoop will provide one or more Referral Codes to Representative. Representative may share the Referral Code with Prospects. In order for Representative to be eligible to receive a Commission (as defined below) for a Prospect, a Prospect must first sign-up for Flex Benchmarks using one of Representative’s Referral Code(s). Scoop shall have no obligation to Representative with respect to a specific Prospect if such Prospect is already under written contract to receive Flex Benchmarks from Scoop.
- Independent Contractors. The parties are independent contractors and not partners, joint venturers or otherwise affiliated and neither has any right or authority to bind the other in any way. Accordingly, Representative shall not commit Scoop to any Customer Agreement or other contract or obligation.
- Commissions; Taxes.some text
- Commission. During the term of this Agreement, for each Customer Agreement executed by Scoop and a Customer where the Customer signs up with Representative's Referral Code, Scoop will pay to Representative a “Commission” equal to the product of (i) the Referral Fee Percentage and (ii) all Net Revenue actually received by Scoop in respect of such Customer Agreement during the twelve (12) months following execution of such Customer Agreement. For clarity, Referral Fee only applies to the Customer's first twelve (12) month agreement for Flex Benchmarks.
- Customer Discount. Customers that use Representative's Referral Code(s) will receive a Partner Discount on their initial subscription to Flex Benchmarks.
- Payment Terms. Commissions shall be paid on a calendar quarterly basis, within thirty (30) days after the end of each calendar quarter for Commissions that are earned during the immediately previous calendar quarter.
- Taxes. Each party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments and other governmental impositions resulting from its own activities under this Agreement.
- Expenses. Each party will be responsible for the expenses that it incurs in connection with the performance of this Agreement, except as may otherwise be mutually agreed upon by the parties.
- Ownership. As between the parties, Scoop owns all right, title and interest in Flex Benchmarks and all other products and services offered by Scoop.
- Warranties; Disclaimer.some text
- Warranties. Any warranties for Flex Benchmarks shall run directly from Scoop to the Customer or Prospect. In no event shall Representative make any representation, guarantee or warranty concerning the Benchmark Product, any other Scoop product or service, or terms and conditions of any Customer Agreement, except as expressly authorized in writing by Scoop. Representative shall indemnify, defend and hold harmless Scoop, its directors, officers, agents, and affiliates against any liability, loss, costs, or damages arising out of or related to Representative’s breach of the foregoing sentence.
- Disclaimer. SCOOP MAKES NO WARRANTIES TO REPRESENTATIVE, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.
- Liability Limitation. EXCEPT WITH RESPECT TO A BREACH OF SECTION 5 OR 8 AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY’S LIABILITY SHALL EXCEED THE COMMISSIONS PAYABLE BY SCOOP TO REPRESENTATIVE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
- Term and Termination.some text
- Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period of one (1) year and shall automatically renew for successive one (1) year terms unless and until either party terminates this Agreement pursuant to Section 7.2.
- Termination. Either party may, at its option, terminate this Agreement upon ninety (90) days written notice to the other party for any reason or for no reason whatsoever. This Agreement may also be terminated by either party upon thirty (30) days written notice if the other party breaches this Agreement in any material respect and the breaching party fails to cure such breach within such 30-day period.
- Effect of Termination. Upon any termination or expiration of this Agreement, (i) except in cases of termination by Scoop for cause, Scoop will continue to pay Commissions in accordance with this Agreement with respect to Customer Agreements executed prior to the effective date of such termination or expiration; (ii) Representative shall immediately cease all promotion of Flex Benchmarks and shall immediately return to Scoop, or at the option of Scoop, destroy, all Confidential Information of Scoop and all information related to Flex Benchmarks provided to Representative hereunder; and (iii) Scoop may market, sell or provide Flex Benchmarks to any third party, without obligation to pay Representative any Commissions. Notwithstanding any termination or expiration of this Agreement, the following Sections shall survive and remain in effect: 1, 2.3, 4, 5, 6, 7.3, 8 and 9. Any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.
- Confidentiality.some text
- Confidentiality. During the course of performing this Agreement, each party may have access to confidential or proprietary information of the other party (“Confidential Information”). Confidential Information shall include, without limitation, all customer lists and information relating to the parties’ products and pricing. A party’s Confidential Information shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party on a non-confidential basis from a third party without any breach of a confidentiality obligation; (iii) is disclosed by such party to a third party without any obligation of confidentiality; or (iv) was independently developed by the other party without reference to such party’s Confidential Information. Each party agrees to use the other party’s Confidential Information only as necessary to perform their obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
- Irreparable Harm. Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies, without the necessity of posting any bond or surety.
- Miscellaneous.some text
- Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the provisions of the conflict of laws thereof.
- Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or upon receipt if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section.
- Assignment. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part; provided, however, that this Agreement may be assigned by Representative or Scoop without the consent of the other to any successor corporation or entity whether by purchase of all or substantially all of the assets relating to this Agreement, a sale of a controlling interest of the capital stock of the assigning party, by merger, consolidation or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable.
- Entire Agreement. This Agreement (together with all attachments and exhibits hereto) constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.