WISPCO, LLC. (“CLUBSCOUT”), a Texas limited liability company, displays reviews and ratings on a variety of coaches and clubs (collectively, “User/Subscribers”) to allow the person further referenced as You, Your or Yourself as the user and/or subscriber, the opportunity to read about the experiences other users/subscribers have had with these users/subscribers and to provide your own reviews and ratings on the User/Subscribers Service.
In order to use the service, you must read and accept all of the terms and conditions in and linked to this User/Subscriber Agreement (this “Agreement”). This User/Subscriber agreement is subject to change and/or incur modifications by CLUBSCOUT from time to time at CLUBSCOUT’s sole discretion without notification to the User/Subscriber. We strongly recommend that as you read this agreement You also access and read the linked information.
YOU ACCEPT ALL OF THE TERMS AND CONDITIONS WITHIN THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
DEFINITIONS In addition to capitalized terms defined parenthetically within specific sections of this Agreement as used throughout this Agreement, the following capitalized terms shall have the following meanings
(a) User/Subscriber - person further referenced and identified as You, Your or Yourself as the user and/or subscriber of www.CLUBSCOUT.com
(b) Promotions- promotions typically offer a discount or benefit to CLUBSCOUT Users/Subscribers and are managed by User/Subscriber Clubs, Parents/Players, and /or Coaches
1. CLUBSCOUT SERVICE
CLUBSCOUT displays reviews and ratings on a variety of User/Subscribers based upon the actual first-hand experiences other users have had with these User/Subscribers and also provides You with the opportunity to provide Your own reviews and ratings on the User/Subscribers.
(a) CLUBSCOUT Subscriptions and Plans
CLUBSCOUT users/subscribers have one of the following annual User/Subscriber plans: Rookie or Allstar (“Plan”).
You may log into www.CLUBSCOUT.com and check your “Manage My Account” page to confirm which subscription or plan you currently have. You may learn about the various benefits offered in each Plan by visiting www.CLUBSCOUT.com Depending on the plan you choose, these benefits may include some or all of the following:
Nationwide access to ratings and reviews
Nationwide access to User/Subscriber activities
User/Subscriber care support
Access to CLUBSCOUT’s Lists Conflict Resolution Process (For details, please see Section 11, Conflict Resolution Process, below.)
Exclusive discounts offered by third-party companies offering services of interest to users
(b) CLUBSCOUTearns revenue from eligible members. For example, qualifying members can pay CLUBSCOUT to offer promotions on the website through enhanced profiles, direct mail, or other services. Unless otherwise prohibited by law, members offering promotions typically offer a discount or benefit to CLUBSCOUT users.
(c) User/Subscribership Benefits
The benefits of your CLUBSCOUT plan are available only while Your plan is active and your CLUBSCOUT account is in good standing. CLUBSCOUT reserves the right to modify any and all plans at any time and at its sole discretion. The details of your selected plan, including the price and the various benefits offered therein, might be different than those details applicable to another new or existing User/Subscriber who purchased the same plan in the same market. You may check your plan details at www.CLUBSCOUT.com on your “Manage My Account” page by signing into Your account.
2. REGISTRATION INFORMATION
As a condition of your use of the service, you agree to: (a) provide CLUBSCOUT with true, accurate, current and complete information as prompted by the CLUBSCOUT registration forms, when registering for or using the service; and (b) update and maintain the truthfulness, accuracy and completeness of such information.
3. MINIMUM AGE
You must be 18 years of age or older to use or register for services.
4. USE VOID WHERE PROHIBITED
User/Subscribership in the service is void where prohibited.
6. SERVICE FEES AND BILLING METHODS; AUTOMATIC RENEWAL
(a) User/Subscribership Fee
CLUBSCOUT will charge you a User/Subscriber fee in order to provide the service. Your User/Subscriber fee is the amount you were charged for one term of your subscription or plan not including any promotions or discounts that may have been applied (the “User/Subscribership Fee”). For this or other reasons, the membership fee might be different than the amount paid by another new or existing User/Subscriber who purchased the same services in the same market. You may check your account online if have any questions.
You acknowledge that CLUBSCOUT reserves the right, at any time, to modify its membership fees and billing methods without prior notice. User/Subscriber fees may be paid in advance by credit card, debit card, or PayPal.
(b) Automatic Renewal
If You have paid a User/Subscriber plan (e.g., Rookie or Allstar), CLUBSCOUT will automatically renew your plan for one year at the subscriber fee for the plan (as such subscriber fee may be modified as provided above) using the credit card, debit card or other payment information on file with CLUBSCOUT. Such renewal payment will take place on or about your renewal date. Your plan will continue, and your payment method will be charged the membership fee until you cancel the plan, which you may do at any time.
If the payment processing for the renewal of your plan fails for any reason, we will attempt to process your renewal for a period up to one hundred eighty (180) days in accordance with our standard renewal practices then in effect (which may be modified from time to time by CLUBSCOUT), except as otherwise required by applicable law, You agree that CLUBSCOUT will not provide you with any notices prior to each annual renewal payment.
If You chose a free Rookie plan, Your plan also will renew on your renewal date, but you will not be charged.
(c) Canceling Your Plan
You may cancel Your Plan at any time by contacting CLUBSCOUT by first class certified mail at P.O. Box 80041 Keller, TX 76244;or by signing into Your account and visiting https://clubscout.com/ContactUs. If you wish to avoid renewal, your cancellation request must be received by no later than 5:00 p.m. Eastern Time on the business day prior to your renewal date.
(d) User/Subscribership Fee Refund Policy:
(d) User/Subscribership Fee Refund Policy:
Regardless of when you joined CLUBSCOUT, if Your plan automatically renews and you cancel your plan within thirty (30) days after Your renewal date, you may request a full refund of the membership fee.
Under no circumstances shall refunds exceed the amount You paid for Your membership fee during the prior User/Subscribership term.
In accordance with Section 18, below, if CLUBSCOUT terminates your account for any reason and you are not in breach of this agreement, CLUBSCOUT will refund your membership fee on a pro rata basis from the date of such termination to the end of the then current term.
User/Subscribers are not entitled to refunds of their membership fee under any other circumstances.
(f) Authorization to Update Credit Card Account Information; Account Updater
If the credit card or debit card provided by you to CLUBSCOUT has expired during an attempt to renew membership fees pursuant to this section, you authorize CLUBSCOUT to revise the expiration date and proceed with billing using the same credit or debit card account. In addition, as a convenience to you, CLUBSCOUT contracts with a third-party service that refreshes expired or replaced credit card and debit card numbers with the numbers of any replacement cards so that your paid services do not lapse because the credit card or debit card information initially on file with CLUBSCOUT has expired or changed (“Account Updater”).
CLUBSCOUT may, from time to time and in its sole discretion, offer certain products or services as incentives (“Incentives”) to select one of the membership plans (e.g., a free Volleyball team shirt for User/Subscribers who select the Allstar). CLUBSCOUT is neither the seller nor manufacturer of the incentives and disclaims any and all liability and warranties of any kind relating to the incentives, the use of the incentives, and the tax implications of receiving the incentives. You agree that CLUBSCOUT is not responsible or liable for any part of the incentives. Furthermore, you agree that you shall not bring any action and/or claim against CLUBSCOUT relating in any way to the incentives. By subscribing, registering, or using any of the CLUBSCOUT site, You agree that you indemnify CLUBSCOUT from any liability whatsoever associated with the incentives. In the event that an incentive is lost, does not operate properly, or is otherwise incorrect, unfit, or unusable in any way, You agree that CLUBSCOUT has no responsibility for replacing the Incentive.
8. ACCOUNT SECURITY
CLUBSCOUT will assign You a user ID and a password when you register. Your user ID and password may only be used by you and the User/Subscribers of your household (meaning anyone who currently shares with you the address you registered with CLUBSCOUT. You are solely responsible for maintaining and protecting the confidentiality of your user ID and password and are fully responsible for all activities that occur under your user ID and password.
9. LIMITED LICENSE TO WEBSITE
By agreeing to the terms and conditions of this agreement, CLUBSCOUT grants you a limited license to access and use the reviews and ratings offered by the service for your personal purchase decisions. You acknowledge and agree that you will not access, reproduce, duplicate, copy, sell, re-sell, visit or otherwise exploit for any commercial, educational, or any other non-personal purpose the reviews and ratings and any content, without the express written consent of CLUBSCOUT. You agree that, should You violate any of the limited license limitations explicitly stated in this Section and/or any other copyright infringement, CLUBSCOUT reserves the right to cancel your subscription immediately without refund. Additionally, any re-use of any copyrighted information will be prosecuted to the fullest extent of the law.
10. SUBMISSIONS OF REVIEWSIn order for you to submit your own reviews and ratings on the Website, you acknowledge and agree that:
all of your reviews and ratings will either be based upon: (i) your actual first-hand experiences with the service providers you are reviewing;
all of your reviews and ratings of the service providers that you are rating will be accurate, truthful and complete in all respects;
You do not work for, own any interest in, or serve on the board of directors of, any of the service providers for which you submit reviews and ratings;
You do not work for, own any interest in or serve on the board of directors of any competitors of the service providers for which you submit reviews and ratings;
You are not in any way related (by blood, adoption, marriage, or domestic partnership, if the service provider is an individual) to any of the service providers for which you submit reviews or ratings;
Your name and review information will be made available to the service providers on which you review; and
CLUBSCOUT may redact, delete, or reject your reviews if they do not conform with CLUBSCOUTs publication criteria, which may change from time to time at CLUBSCOUT’s sole discretion.
11. CONFLICT RESOLUTION PROCESS
If You have a dispute with a User/Subscriber and an active, qualifying Plan, You may request CLUBSCOUT’s assistance in communicating with that User/Subscriber about Your desired resolution.
You may make a request through our Website or by contacting a CLUBSCOUT designated User/Subscriber Care Representative. You then will be requested to complete and return to CLUBSCOUT certain documentation relating to Your complaint. Shortly thereafter, a User/Subscriber of our Team will contact You to obtain additional information and understand Your desired resolution. The Team then will contact the User/Subscriber to explain Your complaint and desired resolution and to ask the User/Subscriber to respond in writing within a reasonable timeframe.
If the User/Subscriber agrees to Your desired resolution or supplies a counteroffer that You find acceptable, the case is considered resolved, Your review regarding the User/Subscriber will be removed, and You will have the opportunity to submit updated feedback about Your experience. If the User/Subscriber responds but does not resolve the matter as described above, Your feedback shall remain unchanged.
Your participation in the resolution process is at CLUBSCOUT’s sole discretion. We reserve the right to reject Your request to participate for any reason. By participating in the process, You consent to have Your complaint and a story about the circumstances relating to the resolution published in any of our publications.
The resolution process is not a legal forum and You agree that CLUBSCOUT does not, at any time, become a party to Your dispute with the User/Subscriber. CLUBSCOUT is neither a mediator nor an arbitrator and does not provide legal advice or assistance. If You believe legal services are necessary or would be helpful to resolve Your dispute with a User/Subscriber, CLUBSCOUT encourages You to consult with an attorney. CLUBSCOUT does not guarantee that Your participation in the resolution process will result in a satisfactory outcome or Your desired resolution.
You agree that, by offering the resolution process, CLUBSCOUT does not waive any of its disclaimers or limitations of liability, including without limitation those set forth under Sections 14 (User/Subscribers), 25 (Warranty Disclaimer), and 26 (Limitation of Liability).
You acknowledge and agree that, during the Term of Your Plan, CLUBSCOUT may—in its sole discretion and without notice—change the resolution process program, including without limitation, its name, process, and/or function.
12. CONTENT LICENSE AND PROMOTION PLACEMENT
Although CLUBSCOUT does not claim ownership of any of the reviews, ratings, communications, information, data, text or other materials You give us (collectively, the “Content”), by providing Content for the Website, You automatically grant, and You represent and warrant that You have the right to grant, to CLUBSCOUT an unrestricted and irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and to authorize sublicenses (through multiple tiers) of the foregoing. In addition, by providing CLUBSCOUT with Content, You automatically grant us all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction or exploitation of the Content on our Website by any other party.
You understand and agree that CLUBSCOUT may display, disseminate, or place Promotions near, with, or adjacent to Your Content in any form or media (whether now known or subsequently created). The manner, mode, and extent of such Promotions are subject to change at CLUBSCOUT’s discretion and without notice to You.
13. PUBLICATION AND DISTRIBUTION OF CONTENT
CLUBSCOUT does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You agree and acknowledge that CLUBSCOUT simply acts as a passive conduit and an interactive computer service provider for the publication and distribution of Content and for the publication and distribution of any content posted by User/Subscribers in response to Content (“User/Subscriber Content”). You agree that You understand that all Content and User/Subscriber content posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such content originated. You agree and understand that CLUBSCOUT does not control, and is not responsible for content or User/Subscriber content made available through the service, and that by using the service, You may be exposed to content that is inaccurate, misleading, or offensive. You agree that You must evaluate and make Your own judgment, and bear all risks associated with, the use of any content and User/Subscriber Content.
You further agree and acknowledge that CLUBSCOUT has no obligation to screen, preview, monitor or approve any content or User/Subscriber content, or content posted or submitted by any other CLUBSCOUT User/Subscriber or any User/Subscriber. However, CLUBSCOUT reserves the right to review and delete any content that, in its sole judgment, violates the terms and conditions of this agreement. By using the service, You agree that it is solely YOUR RESPONSIBILITY to evaluate Your risks to bear associated with the use, accuracy, usefulness, completeness or appropriateness of any content that You submit, receive, access, transmit or otherwise convey through the Service. Under no circumstances will CLUBSCOUT be liable in any way for any Content or User/Subscriber Content, including, but not limited to, any content or User/Subscriber content that contains any errors, omissions, defamatory statements, or confidential or private information or for any loss or damage of any kind incurred as a result of the use of any content or User/Subscriber content submitted, accessed, transmitted or otherwise conveyed via the service. You waive the right to bring or assert any claim against CLUBSCOUT relating to content or User/Subscriber content, and release CLUBSCOUT from any and all liability for or relating to any content or User/Subscriber content.
ClubScout does not endorse and is not responsible or liable for any Content, User/Subscribers Content, Promotions, data, advertising, products, goods or services available or unavailable from, or through, any Members. You agree that should You use or rely on such Content, User/Subscriber Content, Promotions, data, advertisement, products, goods or services, available or unavailable from, or through any User/Subscriber, ClubScout is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any User/Subscriber, and any other terms, conditions, representations or warranties associated with such dealings, are between You and such User/Subscribers exclusively and do not involve ClubScout. You should make whatever investigation or other resources that You deem necessary or appropriate before hiring or engaging User/Subscribers.
You agree that ClubScout is not responsible for the accessibility or unavailability of any User/Subscribers or for Your interactions and dealings with them, waive the right to bring or assert any claim against ClubScout relating to any interactions or dealings with any User/Subscribers, and release ClubScout, from any and all liability for or relating to any interactions or dealings with User/Subscribers). In addition, You agree that ClubScout may exclude User/Subscribers from displaying in search results on the ClubScout Website for failing to meet particular ClubScout standards regarding User/Subscribers conduct. In addition, You agree that ClubScout may exclude User/Subscribers from displaying in search results on the ClubScout Website for failing to meet particular ClubScout standards regarding User/Subscribers conduct and performance.
ClubScout may, in its sole discretion, have criminal and/or financial background checks conducted on certain User/Subscribers. By having such background checks conducted, ClubScout DOES NOT WAIVE ANY OF ITS DISCLAIMER OR LIMITATIONS OF LIABILITY, INCLUDING WITHOUT LIMITATION, THOSE SET FORTH UNDER THIS SECTION, SECTION 25 (WARRANTY DISCLAIMER), OR SECTION 26 (LIMITATION OF LIABILITY).
15. YOUR CONDUCT
In connection with Your use of the Service, You represent and warrant that You:
are above the age of eighteen (18);
will abide by the letter and spirit of the terms and conditions of this agreement and all applicable local, state, national or international laws;
will not submit any reviews that may be considered by CLUBSCOUT to be unlawful, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, invasive of another person’s privacy or proprietary rights, or racially, ethnically or otherwise objectionable;
will submit thorough and thoughtful reviews of the User/Subscribers You review (for example, submitting a review describing a User/Subscriber as “He/She is great.” without additional commentary is not a thorough and thoughtful review);
will not submit reviews that comment on other users or the reviews of other users;
will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with CLUBSCOUT, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
will not submit reviews that are encrypted or that contain viruses, Trojan horses, worms, time bombs, spiders, cancelbots, or other computer programming routines that are intended to damage, interfere with, disrupt, impair, disable or otherwise overburden our Website;
will not access, download or copy any information contained on our Website through artificial means (including but not limited to spiders, hacking devices, computer programs, bots or other such means);
will not post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
will not take any action that would undermine the review and rating process under the Service;
will not attempt to gain unauthorized access to the Service, other user accounts, or other computer systems or networks connected to the Service;
will not use the Service in any manner that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any material that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
will not use the Service in any way that could interfere with the rights of CLUBSCOUT or the rights of other users of the Service;
have sufficient rights in and to all Content that You provide, transmit or otherwise convey to CLUBSCOUT in connection with the Service;
agree not to re-sell or assign Your rights or obligations under this Agreement;
will not reproduce, duplicate, copy, sell, re-sell or exploit any Content;
will not access any content for any commercial, educational or other purposes not related to Your personal purchasing decisions, the express written consent of CLUBSCOUT, which consent may be withheld by CLUBSCOUT in our discretion;
grant us an unrestricted and irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute the Content and to prepare derivative works of, or to incorporate such Content into other works, and to grant and to authorize sublicenses of the foregoing;
agree not to create an account or use CLUBSCOUT services if Your account previously has been terminated by CLUBSCOUT or if You previously have been banned from using the services; and
agree not to: (i) register for more than one account or register for an account on behalf of an individual other than Yourself; (ii) impersonate any person or entity, including, but not limited to, CLUBSCOUT personnel, or falsely state or otherwise misrepresent Your affiliation with a person or entity; or (iii) advocate, encourage or assist any third party in doing any of the foregoing activities in this subsection.
You shall not use CLUBSCOUT to promote any items or to advertise for any product/service/companies/etc. without the prior written permission from CLUBSCOUT. Any violation of this provision may result in the immediate cancelation of Your subscription without refund. Additionally, if Your account is suspended, and You open another account and continue to promote or advertise any produce/service/company/etc. without the prior written permission from CLUBSCOUT, You will be liable to CLUBSCOUT in the amount of fair compensation for equivalent advertising frequently sold by CLUBSCOUT to other advertisers, plus CLUBSCOUT’s collection costs, including attorney’s fees. You agree that due to the difficulty in assessing the value of the damages and opportunity cost of the advertisement, the minimum penalty assessed will be $10,000.
The reviews and ratings that You provide do not reflect the views of CLUBSCOUT, its officers, managers, owners, employees, agents, designees or other users. In addition, CLUBSCOUT retains the right, in its sole discretion, to determine whether or not Your use of the Service is consistent with the terms and conditions of this Agreement. CLUBSCOUT may suspend, restrict or terminate Your use of the Service and to refuse any future use of all or portions of the Service if Your use breaches or fails to comply with any of the terms and conditions of this Agreement. Additionally, CLUBSCOUT may seek any and all other remedies available to it, including: (a) seeking injunctive relief with any court of competent jurisdiction to enjoin any breach or failure to comply with any of the terms and conditions of this Agreement; and/or (b) if damages are ascertainable, seeking damages relating to any breach or failure to comply with any of the terms and conditions of this Agreement.
17. DISCLOSURE OF INFORMATION
As CLUBSCOUT continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of Your information as one of the transferred assets and to be used for any purpose allowed under this Agreement.
18. TERM AND TERMINATION
The term of this Agreement (“Term”) will be in effect and continue so long as You have an active subscription, User/Subscribership or Plan. In other words, the Term shall continue through each automatic Plan renewal until termination by either party in accordance with the terms of this Agreement.
CLUBSCOUT may, for any reason in its sole discretion, immediately terminate this Agreement, Your account, and Your access to the Service. If CLUBSCOUT merely terminates Your account for its convenience and You are not in breach of this Agreement, CLUBSCOUT will refund Your User/Subscribership Fee on a pro rata basis from the date of such termination to the end of the then current term.
Termination of Your account will include removal of Your access to all offerings of the service, deletion of Your password, deletion of all related information and files, may include the deletion of the content associated with Your account (or any part thereof), and barring Your further use of the service.
19. MODIFICATION OF TERMS AND CONDITIONS
CLUBSCOUT will have the right to modify and restate the terms and conditions of this agreement, and such modification(s) will be effective immediately upon being posted on our website (www.CLUBSCOUT.com). You are responsible for reviewing these terms and conditions regularly. Your continued use of the service after such modifications will be deemed to be Your conclusive acceptance of all modifications to this agreement. If You are dissatisfied as a result of such modification(s), Your only recourse is to immediately discontinue use of the service.
20. MODIFICATION, LIMITATION AND DISCONTINUANCE OF SERVICE
CLUBSCOUT reserves the right at any time to limit access to, modify, change or discontinue the service with or without notice to You and we shall not be liable to You for any such modification, suspension or discontinuance of the service. You agree that CLUBSCOUT will not be liable to You or to any third party for any such limitation, modification, change, suspension or discontinuance of the Service. You agree that CLUBSCOUT may establish general practices, policies and limits, which may or may not be published, concerning the use of the service, including without limitation, the time that reviews and ratings will be retained, the maximum number of reviews and ratings that may be sent from an account, the length of reviews and ratings sent, and the maximum number of times and the maximum duration for which You may access the Service in a given period of time. You agree that CLUBSCOUT has no responsibility or liability for the deletion or failure to store any reviews, ratings and other communications maintained or transmitted by or through the Service. You agree that CLUBSCOUT has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. You agree that CLUBSCOUT is not responsible for any delays, failures or other damage resulting from such problems.
22. USER FEEDBACK
CLUBSCOUT appreciates hearing from You, as well as our other users, and welcomes Your comments regarding our Service. Please be advised, however, that our policy does not permit us to accept or consider creative ideas, suggestions, or materials other than those which we have specifically requested. Although we do value Your feedback on our Service, please be specific in Your comments regarding our services and do not submit creative ideas, suggestions or materials. If, despite our request, You send us creative suggestions, ideas, drawings, concepts or other information (collectively, the “Submissions”), such Submissions will be the property of CLUBSCOUT. In addition, none of the Submissions will be subject to any obligations of confidentiality and CLUBSCOUT will not be liable for any future use or disclosure of such Submissions.
23. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, California web users are entitled to the following specific consumer rights notice: The Services are provided by CLUBSCOUT, Inc. If You have any questions, concerns, or complaints regarding the Services, please contact CLUBSCOUT Inc. by (i) signing into Your account at www.CLUBSCOUT.com or (ii) sending a letter, first class certified mail, to CLUBSCOUT, P.O. Box 80041 Keller, TX 76244, Attn: User/Subscriber Services.
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
24. COPYRIGHT MATERIALS
Aside from user-submitted Content and User/Subscriber Content, all other materials and other information on the Website, including, but not limited to, all text, graphics, logos, icons, images, audio clips, downloads, data compilations and software (collectively, the “Copyright Materials”) are the exclusive property of CLUBSCOUT and/or its licensors and are protected by all United States and international copyright laws. You agree that, should You violate any of the copyright limitations explicitly stated in this Section and/or any other copyright infringement, CLUBSCOUT reserves the right to cancel Your subscription immediately without refund. Additionally, any re-use of any copyrighted information will be prosecuted to the fullest extent of the law.
25. WARRANTY DISCLAIMER
You understand and agree that THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT CLUBSCOUT ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. CLUBSCOUT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ANY CONTENT OR INFORMATION YOU PROVIDE OR CLUBSCOUT COLLECTS WILL NOT BE DISCLOSED OR (E) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to You as they relate to implied warranties.
26. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CLUBSCOUT WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF CLUBSCOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES”), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY CLUBSCOUT OR THE FAILURE OF CLUBSCOUT TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to You.
You understand and agree that Your unlimited access to the Content on the Website represents a substantial portion of the value You receive from Your CLUBSCOUT User/Subscribership Fee. THEREFORE, TO THE EXTENT CLUBSCOUT IS FOUND LIABLE FOR ANYTHING RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICE, CLUBSCOUT’S LIABILITY FOR DAMAGES WILL NOT EXCEED THE EQUIVALENT OF ONE (1) MONTH OF YOUR USER/SUBSCRIBERSHIP FEE (I.E., THE AMOUNT OF YOUR ANNUAL USER/SUBSCRIBERSHIP FEE DIVIDED BY TWELVE).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT CLUBSCOUT CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF USER/SUBSCRIBERSHIP FEES TO CLUBSCOUT THROUGH THE USE OF A CREDIT CARD (A “CREDIT CARD PROCESSOR”). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR CLUBSCOUT, INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN AND SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTIONSUFFERED BY YOU AS A RESULT OF THE FAILURE OF CLUBSCOUT TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY CLUBSCOUT. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF CLUBSCOUT TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY CLUBSCOUT. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS SECTION. YOU HEREBY UNDERSTAND AND AGREE THAT CLUBSCOUT SHALL NOT BE LIABLE FOR THE PAYMENT OF ANY DAMAGES TO YOU UNDER THIS AGREEMENT.
You agree to indemnify, defend, protect, and hold harmless CLUBSCOUT, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of this Agreement by You; (b) the inaccurate or untruthful Content or other information provided by You to CLUBSCOUT or that You submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm You may have caused to another. CLUBSCOUT will have sole control of the defense of any such damage or claim.
28. BREACH OF AGREEMENT AND LIQUIDATED DAMAGES
You understand and agree that, because damages are often difficult to calculate, if it becomes necessary for CLUBSCOUT t to pursue legal action to enforce the terms and conditions of this Agreement, You will be liable to pay us the following amounts as liquidated damages, which You accept as reasonable estimates of CLUBSCOUTs damages for the specified breaches of this Agreement:
If You post Content in violation of this Agreement, You agree to promptly pay CLUBSCOUT One Thousand Dollars ($1,000) for each item of Content posted in violation of this Agreement. We may (but shall not be required to) to issue You a warning before assessing damages.
If You display, copy, duplicate, reproduce, sell, re-sell or exploit for any purpose any Content in violation of this Agreement, You agree to pay One Thousand Dollars ($1,000) for each item of Content displayed, copied, duplicated, reproduced, sold, re-sold or exploited in violation of this Agreement
If You use computer programming routines that are intended to aggregate records or reviews from the Service or otherwise damage, interfere with, disrupt, impair, disable or otherwise overburden our Website, You agree to pay One Hundred Dollars ($100) for each review or record that is aggregated, disrupted, damaged or otherwise affected by You.
Except as set forth in the foregoing subsections (a) through (c), inclusive, You agree to pay the actual damages suffered by CLUBSCOUT, including, but not limited to attorneys’ fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of this Agreement, we reserve the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement, or any combination thereof.
You agree that CLUBSCOUT may communicate any notices to You under this Agreement, through electronic mail, regular mail or posting the notices on the Website. All notices to CLUBSCOUT will be provided by sending a letter, first class certified mail, to CLUBSCOUT, P.O. Box 80041 Keller, TX 76244, Attn: User/Subscriber Services. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), CLUBSCOUT will respond promptly to claims of copyright or trademark infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
P.O. Box 80041
Keller, TX 76244
Attn: Copyright Agent
If You are a copyright or trademark owner (or authorized to act on behalf of the copyright or trademark owner) and believe that Your work’s copyright or trademark has been infringed, please report Your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
identification of the copyrighted work or trademark claimed to have been infringed, or, if multiple copyrighted works or trademarks at a single online site are covered by a single notification, a representative list of such works at that site;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
information reasonably sufficient to permit us to contact You, such as an address, telephone number, and, if available, an electronic mail address at which You may be contacted;
a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent, or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
CLUBSCOUT will investigate notices of copyright and trademark infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
30. ENTIRE AGREEMENT
This Agreement governs Your use of the Service and constitutes the entire agreement between You and CLUBSCOUT. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and CLUBSCOUT regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between You and third parties, including but not limited to, User/Subscribers and others. You represent and warrant that those third party agreements do not interfere with Your obligations and duties to CLUBSCOUT under this Agreement.
31. GOVERNING LAW
This Agreement and the relationship between You and CLUBSCOUT will be governed by the laws of the State of Texas, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where You may be located or any other jurisdiction. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Tarrant County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that CLUBSCOUT may elect, in its sole discretion, to litigate the action in the county or state where any breach by You occurred or where You can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to Your use of the Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
32. PROVISIONS REMAINING IN EFFECT
In the event Your Plan with CLUBSCOUT is terminated or lapses or You are no longer a user of CLUBSCOUT, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Sections 12, 14, 15, 17 and 24 through 31.
If any provision of this Agreement shall be invalid or unenforceable for any reason, the other provisions shall continue to be effective and binding and this Agreement shall be construed as if the invalid or unenforceable provision were omitted.
This Agreement may not be re-sold or assigned by You. If You assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of CLUBSCOUT’s rights if CLUBSCOUT fails to enforce any of the terms or conditions of this Agreement against You. In the event a court finds a provision in this Agreement to not be valid, You and CLUBSCOUT agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between You and CLUBSCOUT as a result of this Agreement or use of the Service. You acknowledge and agree that each of the Released Parties shall be an intended third party beneficiary of this Agreement.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.