These Customer Terms and Conditions (the “Terms”), together with any Purchase Orders and/or Order Forms incorporating these Terms (an “Ordering Document”), make up the entire agreement (the “Agreement”) between the customer indicated on an Ordering Document (“Customer”) and Citizn Company d/b/a TermScout (“TermScout”) regarding Customer’s use of or access to the Services. By using or accessing the Services (defined below), Customer agrees to be bound by these Terms. Any capitalized terms used but not defined in these Terms will have the meanings set forth in the applicable Ordering Document.
1. Provision of Services
All content, reviews, ratings, Certify Badges (defined below), software, deliverables, materials, or information displayed on a TermScout website or application or otherwise provided by TermScout are the “Services”. For any Services purchased under an Ordering Document, TermScout will provide the Services to Customer as described in the applicable Ordering Document(s). Customer agrees that setting up the Services requires collaboration between Customer and TermScout, and Customer agrees to provide reasonable cooperation and to make decisions to enable TermScout to promptly and effectively provide the Services. Customer and TermScout agree to work together in good faith to work through any unforeseen issues or circumstances that may arise during the implementation and execution of the Services. These Terms shall govern all purchases made through the TermScout website or otherwise provided by TermScout, together with any pricing or related business terms selected or agreed to by Customer on such website or otherwise. TermScout will perform the Services at all times in accordance with the Agreement by no later than any dates specified in the applicable Ordering Document(s). For all private contract reviews requested by Customer, TermScout reserves the right to refuse any such requests if, in TermScout’s sole but reasonable discretion, TermScout does not feel it can adequately review such private contract.
2. Ownership and Use of Services
Customer agrees that the Services are and will remain the sole and exclusive property of TermScout, including all associated intellectual property rights. TermScout hereby grants to Customer a non-exclusive, non-transferable license to use the Services solely for its internal business purposes and solely in accordance with this Agreement. Customer shall not: (a) copy, reproduce, reverse engineer, disassemble, create derivative works from, decompile, or otherwise attempt to reveal the trade secrets or know-how underlying the Services, (b) use TermScout’s intellectual property or Confidential Information to develop a competitive offering or otherwise copy TermScout’s content, materials, and/or user interface to develop similar services; (c) transfer to any third party any of its rights to use the Services; (d) sell, resell, license, sublicense, distribute, rent, lease or share the Services or software associated with the Services; (e) permit any third party to use or access the Services; or (f) use the Services to provide any service to a third party without first obtaining a separate service provider license to do so from TermScout. The content provided by TermScout through the Services, including without limitation TermScout’s ratings, reviews, summaries, issue lists, red flags, Certify Badges, market comparisons, frequency data, guidance, methodology, and all other content regarding or concerning the review of contracts by TermScout (the “TermScout Content”) are TermScout’s Confidential Information and are protected by copyright and other intellectual property and proprietary rights. Customer shall not engage in any activity that would violate any rights in the TermScout Content, including without limitation by publishing or otherwise publicly displaying any TermScout Content. Customer acknowledges that TermScout selected, reviewed, analyzed, compiled, arranged, and adjusted data and information regarding the contracts it has reviewed and that the TermScout Content are original compilations (as defined by the 1976 Copyright Act, 17 U.S.C. § 101) containing material wholly and exclusively original to TermScout. Customer may not reproduce, create derivative works of, distribute, publicly perform, or publicly display the TermScout Content or any portion thereof without TermScout’s prior written consent (except as explicitly permitted in this Agreement).
The Agreement is effective as of the date of the applicable Ordering Document. The Agreement will expire upon the termination or expiration of all Ordering Documents.
In addition to any termination rights set forth in any Ordering Document, Customer or TermScout may immediately terminate the Agreement and/or any Ordering Document upon written notice to the other party if:
- the other party is in breach of the Agreement (a) in a way that is not curable, or (b) if curable, fails to cure such breach with 15 days’ notice of the breach; or
- the other party files a petition in bankruptcy, becomes insolvent, or dissolves.
Customer will pay TermScout as and when specified on the applicable Ordering Document(s). Customer will pay invoices in accordance with the applicable Ordering Document, or if no timing is specified on the Ordering Document, then within 30 days after Customer’s receipt of the invoice.
If Customer disputes in good faith any invoiced amount (each, a “Billing Dispute”), Customer will notify TermScout in writing of the nature of the Billing Dispute as promptly as practicable after its determination that such a dispute exists. Customer may withhold payment of the amounts disputed in good faith and such payment will not be considered past due for up to 30 days while the parties work in good faith to resolve the Billing Dispute. If the parties are unable to resolve the Billing Dispute within such 30-day period, it may be resolved pursuant to the dispute resolution section of the Agreement.
All prices and fees are exclusive of sales taxes. Amounts billed to Customer may include sales taxes if applicable.
7. No Legal Advice; No Representation; No Conflicts
Customer acknowledges and agrees that:
- TermScout is not a law firm and does not practice law in any jurisdiction;
- neither TermScout, nor any of its officers, employees, agents or affiliates conveys, or intends to convey legal advice or otherwise engage or intends to engage in the unauthorized practice of law;
- the Services are not a substitute for obtaining legal advice from a qualified attorney; and
- Customer should not act upon any Services without first seeking qualified professional counsel.
Furthermore, Customer acknowledges that: (a) TermScout is in the business of providing a variety of legal-adjacent services for a wide variety of clients including corporations and law firms; and (b) in the course of performing services for Customer and its other clients, TermScout may have access to or be involved in review of contracts involving Customer, and may obtain information concerning Customer from third parties. TermScout will not use or disclose any of Customer’s Confidential Information in representing such other clients (and vice versa) and, when needed, TermScout will establish an ethical wall to assure that Confidential Information is not exchanged between those TermScout personnel working on behalf of Customer and those TermScout personnel working for such other clients. Nothing in this Agreement or any other agreement between the parties shall be construed as limiting in any way TermScout’s ability to review Customer’s contracts on behalf of other clients or to publish information about Customer’s contracts to the extent that such Customer contracts are posted online or otherwise generally available to the public.
8. Confidential Information
- “Confidential Information” means sensitive, confidential, and proprietary information of a party, which, (a) a reasonable person under the circumstances would deem to be confidential in nature, and (b) if improperly used or disclosed by the receiving party, could cause serious irreparable harm to the disclosing party or the third party to whom such information belongs.
- Each party agrees to maintain all Confidential Information as confidential, to use commercially reasonable efforts to protect such Confidential Information, and not to, directly or indirectly, disclose or reveal it to any third party, or use it for any purpose, except as contemplated in this Agreement or as required by a court or governmental authority that has jurisdiction, after first notifying the disclosing party of the disclosure requirement. The following information will not be considered Confidential Information: (a) information that is available to the public at the time of disclosure or later becomes generally available to the public through no fault of the receiving party; (b) data from contracts or similar documents that is anonymized and aggregated such that it is incapable of identifying or being traced back to the contract or any party originally associated with it (“Anonymized Contract Data”), (c) information that is known by the receiving party prior to the disclosure; and (d) information that becomes known to the receiving party through a third party. Notwithstanding Section 8.2(b), Customer may opt out of sharing Anonymized Contract Data with TermScout in its account management settings within the web application on a go-forward basis from the time Customer elects to opt-out.
- For the avoidance of doubt, contracts or related documents that are sent to TermScout which are or become publicly available will not be considered Confidential Information. Contracts sent to TermScout that are not publicly available or that otherwise qualify as Confidential Information shall be treated as Confidential Information.
TermScout will maintain professional liability, worker’s compensation, unemployment, and any other insurance coverage that is required by law. Upon request, TermScout will provide Customer with certificates of insurance or evidence of coverage.
10. Representations and Warranties
TermScout represents and warrants that:
- it has the full right and power to enter into and perform its obligations under the Agreement;
- there are no pending claims or lawsuits, brought by a third party, governmental authority or industry body (“Third Party Actions”) that would prevent TermScout from performing its obligations under the Agreement;
- the Services will be provided using commercially reasonable care designed to ensure the accuracy of the information provided as of the date listed; and
- the Services will comply with any documentation or specifications provided to Customer.
The warranties described in this section are the “Limited Warranties.” As Customer’s sole remedy for breach of any of the Limited Warranties, TermScout will, at TermScout’s sole option: (a) provide a refund to Customer for the portion of the Services that were affected by the breach; or (b) provide a replacement for the portion of the Services affected by the breach.
11. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 10, EACH PARTY EXPRESSLY GIVES UP ITS RIGHT TO ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
TermScout will defend, indemnify and hold harmless Customer and its officers, directors, employees and agents (each an “Indemnified Party” or collectively the “Indemnified Parties”), from and against any and all Third Party Actions and all related losses, liabilities, damages, expenses and costs arising from or relating to:
- any injury including personal injury, death, or property damage caused by TermScout;
- TermScout’s gross negligence or willful misconduct by the Indemnifying Party;
- any infringement or alleged infringement of intellectual property rights of Customer by TermScout;
- any infringement or alleged infringement of any third-party’s intellectual property rights arising from any Services provided by TermScout, except to the extent that such infringement or alleged infringement is caused in whole or in part by:
- content provided by Customer;
- modifications to the Services made by anyone other than TermScout;
- instructions or specifications Customer provided to TermScout;
- use by the Customer of outdated versions of the Services;
- third party software or components; or
- Customer’s violation of this Agreement.
The Indemnified Party will give the Indemnifying Party prompt written notice of any Third Party Action for which it is seeking indemnity. The Indemnifying Party will control the defense and settlement of such Third Party Action, but the Indemnified Party will have the right to participate in the defense of any such Third Party Action with counsel of its own choosing at the Indemnified Party’s cost. In no event will the Indemnifying Party settle, compromise or consent to the entry of a judgment in a manner that is detrimental to the Indemnified Party, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld.
13. Limitation of Liability
EXCEPT WITH RESPECT TO ANY CLAIM ARISING UNDER (i) SECTION 2 (Ownership and Use of Services), (ii) SECTION 8 (Confidential Information), (iii) EITHER PARTY’S OBLIGATIONS UNDER SECTION 12 (Indemnification), or (iv) CUSTOMER’S PAYMENT OBLIGATIONS: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO TERMSCOUT PURSUANT TO THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE ACTION THAT GAVE RISE TO THE LIABILITY (the “General Liability Cap”). IN THE CASE OF THIRD-PARTY CLAIMS ARISING FROM TERMSCOUT’S BREACH OF ANY TERMS APPLICABLE TO CUSTOMER CONTENT UNDER SECTION 30 (Data Rights and Security) TERMSCOUT’S TOTAL LIABILITY TO CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP.
14. Compliance with Laws
Both parties shall comply with all applicable laws and regulations in their performance under the Agreement including without limitation all applicable laws and regulations enacted to combat bribery and corruption.
TermScout may use Customer’s trademarks, service marks, trade names, or logo to make public statements regarding the existence of or details regarding the parties’ relationship without asking for Customer’s consent.
Neither party shall assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. However, a party may assign this Agreement to any third party who replaces the original party as owner of substantially all of its capital stock or assets (whether by sale, merger, corporate reorganization, or otherwise), without the consent of the other party. The Agreement shall be binding upon and be for the benefit of the parties to the Agreement and their respective successors and permitted assigns, if any.
17. Audit Rights
Unless otherwise specified in an Ordering Document, each party will maintain reasonable records relevant to its performance under the Agreement and will retain those records for as long as is required by law. Customer may, at reasonable intervals, upon reasonable notice to TermScout, audit those relevant records of TermScout as needed to ensure the accuracy of TermScout’s billing and/or security practices. Any such audit will be conducted at Customer’s sole expense and in a manner as to not unreasonably interfere with TermScout’s business activities. In order to conduct an audit of billing practices, Customer must have paid TermScout or been charged at least $50,000 USD in the twelve months preceding the audit request. In order to conduct an audit of security practices, TermScout must have been in possession of sensitive information of Customer. Customer audits seeking information beyond billing accuracy or security practices are not permitted.
All notices must be in writing addressed to an authorized representative of the other party. Notice will be deemed given to TermScout when sent by confirmed email to email@example.com with a copy to firstname.lastname@example.org. Notice will be deemed given to Customer when sent by confirmed email to an authorized representative of Customer.
19. Independent Contractor
TermScout is an independent contractor and no partnership or joint venture exists between TermScout and Customer as a result of this Agreement. The Agreement does not constitute authority for TermScout to act for Customer as its agent or make commitments for Customer.
20. Governing Law
Unless otherwise specified in an Ordering Document, this Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles.
21. Dispute Resolution
If there is a dispute between the parties arising out of, or in connection with, the Agreement, the parties agree that they will first attempt to resolve the dispute through good faith negotiations between one or more senior management members of each party. If either party believes that such negotiations will not result in a resolution, then it shall notify the other party and thereafter either party may commence litigation in the state or federal courts in Denver, Colorado. The parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction. Each party irrevocably waives to the fullest extent permitted by applicable law: (A) any objection it may have to the Colorado courts referred to above; (B) any claim that any such action or proceeding has been brought in an inconvenient court; and (C) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process.
22. Equitable Relief
Notwithstanding anything to the contrary in the Agreement, either party may seek equitable relief in order to protect its Confidential Information without having to post bond and without having to prove actual monetary damages. The parties hereby waive any bond or other security requirements that may be necessary for obtaining equitable relief.
23.Survival of Obligations
Any rights and obligations that by their nature extend beyond the expiration or termination of the Agreement shall survive the expiration or termination of the Agreement. For the avoidance of doubt, the rights and obligations in Sections 2 (Ownership and Use of Services), 8 (Confidential Information), and 13 (Limitation of Liability) shall survive the expiration or termination of the Agreement.
24. Force Majeure
Neither party will be liable for any failure to perform, caused by circumstances beyond its reasonable control, including, without limitation, acts of God, acts of war, pandemic, or government action, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.
25. No Waiver
No failure or delay of either party in exercising at any time any of its rights or remedies under the Agreement will in any way be a waiver of such rights or remedies, and any waiver of any rights or remedies granted on one occasion shall not be deemed a waiver of such rights or remedies on other occasions.
The version of these Terms in effect as of the date of the applicable Ordering Document(s) will govern the Services provided to the Customer. Changes to the Agreement after execution of an Ordering Document must be agreed to in writing by both parties. However, TermScout may change these Terms from time to time, provided that such changes shall only apply to any Ordering Document entered into by the parties after the change has been made.
If any provision of the Agreement is held invalid or unenforceable to any extent, the remainder of the Agreement shall not be affected.
28. Entire Agreement
29. Customer Content
As between Customer and TermScout, Customer owns all content provided by Customer (“Customer Content”), and TermScout may not use or disclose any Customer Content except as permitted under the Agreement and as needed to provide the Services to Customer.
However, Customer grants TermScout a limited, irrevocable, perpetual license to use Anonymized Contract Data for any purpose.
30. Data Rights and Security
- At all times TermScout will process Personal Data only for the purposes of providing the Services.
- TermScout will limit access to Personal Data to its personnel who have a need to know the information for the purposes of providing the Services.
- TermScout may use Personal Data on an anonymized basis for its legitimate business purposes.
- TermScout shall promptly inform Customer in writing of any Security Incident (as defined below) of which TermScout becomes aware. Such notice will summarize in reasonable detail the effect on Customer, if known, of the Security Incident and the corrective action taken or to be taken by TermScout. TermScout shall promptly take all necessary and advisable corrective actions, and will cooperate with Customer in all reasonable and lawful efforts to prevent, mitigate or rectify such Security Incident. TermScout will: (a) investigate such Security Incident and perform a root cause analysis thereon; (b) remediate the effects of such Security Incident; (c) provide Customer with reasonable assurances that such Security Incident is not likely to recur; and (d) provide Customer with a root cause analysis report within seventy-two (72) hours after it becomes available by TermScout. “Security Incident” means the known unauthorized access, use, disclosure, modification, or destruction of any Personal Data related to Customer.
- TermScout will promptly inform Customer in writing of any requests relating to the personal information TermScout processes on Customer’s behalf and will cooperate with Customer to respond to such requests.
31. TermScout Badge Program
TermScout offers a website Certify program (“TermScout Certify Badge Program”) to Customers who meet the eligibility requirements detailed in the Certify Badge Program Addendum (“Certify Badge Addendum”). Any Customer who copies, embeds, publicly displays, or otherwise promotes one or more Certify Badges shall be bound by the terms of the Certify Badge Addendum, which is hereby incorporated into these Terms, as applicable. “Certify Badge” means the Certified Balanced, Certified Favorable, Certified Very Favorable, or Best in Class badges provided by TermScout, and any other TermScout asset or information pertaining to the rating or summary of a contract.
32. Order of Precedence
33. Free Users
Sections 10 (Representations and Warranties), 12 (Indemnification), 16 (Assignment), and 17 (Audit Rights) shall not apply to Customers during any period in which such Customers use exclusively free services.
TermScout Certify Badge Addendum
Last modified: December 9, 2022
This TermScout Certify Badge Addendum governs use of the TermScout contract certification Service, which offers the opportunity to implement Certify Badges, pursuant to the Contract Certification Standards, which are incorporated herein by reference. By using the TermScout Certify Badge Program, Customer agrees to be bound by this Certify Badge Addendum, as well as the Terms.
TermScout reserves the right to modify the terms of this Certify Badge Addendum and the features of the TermScout Certify Badge Program at any time. Customer will be notified by email (at the primary email address used in relation to the Certify Badge Addendum and/or Services) of any changes to this Certify Badge Addendum. Customer’s continued use of the TermScout Certify Badge Program after any such modification will constitute Customer’s acceptance therein. If Customer does not agree to the modifications, Customer must discontinue use of the TermScout Certify Badge.
- Grant of License
During such time as Customer is (a) fully compliant with Section 3 below and (b) fully compliant with the Contract Certification Standards, TermScout grants Customer a revocable, non-exclusive, non-transferable and non-sublicensable license to copy, embed, implement, publicly display, or otherwise promote Certify Badges. Nothing in this Certify Badge Addendum or the Terms shall be deemed to grant Customer any right, title or interest in or to the TermScout Certify Badge Program or any Certify Badges.
- Customer’s Obligations
Use of TermScout Certify Badges is subject to the requirements set forth in this Certify Badge Program Addendum, as well as TermScout’s Terms and Conditions.
Use of TermScout Certify Badges must be in compliance with the following requirements:
- Certify Badges may only be used in connection with contracts that meet TermScout's published Certification Standards (“Certified Contracts”).
- If the Certified Contract changes, Customer must notify TermScout within 3 business days of posting such change.
- The Certify Badge(s) must be placed legibly and conspicuously.
- The Certify Badges must be posted at least 150 pixels wide by 169 pixels high in size.
- The copy, colors, shapes, or other design elements on any Certify Badge may not be altered.
- All Certify Badges displayed on any digital media must hyperlink back to the TermScout webpage associated with such contract via a dedicated hyperlink provided by TermScout.
- Customer shall make reasonable efforts to update the Certify Badges and related resources on its site from time to time as requested by TermScout.
Failure to abide by this Section 3 shall be considered a breach of this Certify Badge Addendum.
TermScout may terminate this Certify Badge Addendum at any time for any reason, in its sole discretion. If Customer has paid any fees, as mutually agreed to by the parties, and TermScout terminates this Certify Badge Addendum pursuant to this Section 4, Customer shall be entitled to a pro-rata refund for the unused portion of fees paid. For the avoidance of doubt, termination of this Certify Badge Addendum will not terminate any other Services or agreements.
- Certify Badge Removal
If TermScout terminates this Certify Badge Addendum, upon written notice, Customer shall have five (5) days to remove any Certify Badges from Certified Contracts.
- DISCLAIMER OF WARRANTIES
PARTICIPATION IN THE TERMSCOUT CERTIFY BADGE PROGRAM IS AT CUSTOMER’S SOLE RISK, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TERMSCOUT CERTIFY BADGE PROGRAM AND ANY CERTIFY BADGES ARE PROVIDED AS IS AND AS AVAILABLE WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.