Whooster Terms and Conditions of Service
1. RESTRICTED LICENSE. HDR Systems, LLC hereinafter referred to as (“Whooster”) hereby grants to Customer a restricted license to use the Whooster Services and any data contained therein, subject to the restrictions and limitations set forth below:
(1) Generally. Whooster hereby grants to Customer a restricted license to use the Whooster Services solely for Customer’s own internal business purposes. Customer represents and warrants that all of Customer’s use of the Whooster Services shall be for only legitimate business purposes, including those specified by Customer in connection with a specific information request, relating to its business and as otherwise governed by the Agreement. Customer shall not use the Whooster Services for marketing purposes or resell or broker the Whooster Services to any third party and shall not use the Whooster Services for personal (non-business) purposes. Customer shall not use the Whooster Services to provide data processing services to third-parties or evaluate the data of or for third-parties. Customer agrees that if Whooster determines or reasonably suspects that Customer is engaging in marketing activities, reselling, brokering or processing or evaluating the data of or for third-parties, or using the Whooster Services for personal (non-business) purposes or using the Whooster Services’ information, programs, computer applications, or data, or is otherwise violating any provision of this Agreement, or any of the laws, regulations, or rules described herein, Whooster may take immediate action, including, without limitation, terminating the delivery of, and the license to use, the Whooster Services. Customer shall not access the Whooster Services from Internet Protocol addresses located outside of the United States and its territories without Whooster’s prior written approval. Customer may not use the Whooster Services to create a competing product. Customer shall comply with all laws, regulations and rules which govern the use of the Whooster Services and information provided therein. Whooster may at any time mask or cease to provide Customer access to any Whooster Services or portions thereof which Whooster may deem, in Whooster’s sole discretion, to be sensitive or restricted information.
(2) GLBA Data. Some of the information contained in the Whooster Services is “nonpublic personal information,” as defined in the Gramm-Leach-Bliley Act (15 U.S.C. § 6801, et seq.) and related state laws, (collectively, the “GLBA”), and is regulated by the GLBA (“GLBA Data”). Customer shall not obtain and/or use GLBA Data through the Whooster Services, in any manner that would violate the GLBA, or any similar state or local laws, regulations and rules. Customer acknowledges and agrees that it may be required to certify its permissible use of GLBA Data falling within an exception set forth in the GLBA at the time it requests information in connection with certain Whooster Services and will recertify upon request by Whooster. Customer certifies with respect to GLBA Data received through the Whooster Services that it complies with the Interagency Standards for Safeguarding Customer Information issued pursuant to the GLBA.
(3) DPPA Data. Some of the information contained in the Whooster Services is “personal information,” as defined in the Drivers Privacy Protection Act (18 U.S.C. § 2721, et seq.) and related state laws, (collectively, the “DPPA”), and is regulated by the DPPA (“DPPA Data”). Customer shall not obtain and/or use DPPA Data through the Whooster Services in any manner that would violate the DPPA. Customer acknowledges and agrees that it may be required to certify its permissible use of DPPA Data at the time it requests information in connection with certain Whooster Services and will recertify upon request by Whooster.
(4) Fair Credit Reporting Act. Whooster is not a “consumer reporting agency”. The Whooster Services provided pursuant to this Agreement are not provided by “consumer reporting agencies,” as that term is defined in the Fair Credit Reporting Act, (15 U.S.C. §1681, et seq.), (the “FCRA”), and do not constitute “consumer reports” as that term is defined in the FCRA. (A) Whooster Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. (B) Customer certifies that it will not use any of the information it receives through the Whooster Services to determine, in whole or in part an individual’s eligibility for any of the following products, services or transactions (i) Credit or insurance to be used primarily for personal, family or household purposes; (ii) Employment purposes; (iii) A license or other benefit granted by a government agency; or (iv) Any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation apartment rental, check-cashing, or the opening of a deposit or transaction account. (C) By way of clarification, without limiting the foregoing, Customer may use, except as otherwise prohibited or limited by this Agreement, information received through the Whooster Services for the following purposes, (i) To verify or authenticate an individual’s identity; (ii) To prevent or detect fraud or other unlawful activity; (iii) To locate an individual; (iv) To review the status of a legal proceeding; (v) To collect a debt, provided that such debt collection does not constitute in whole or in part, a determination of an individual consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes; or (vi) To determine whether to buy or sell consumer debt or a portfolio of consumer debt in a commercial secondary market transaction, provided that such determination does not constitute in whole or in part, a determination of an individual consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes. (D) If Customer is using the Whooster Services in connection with collection of a consumer debt on its own behalf, or on behalf of a third-party, Customer shall not use the Whooster Services, (i) To revoke consumer credit; (ii) To accelerate, set or change repayment terms; or (iii) For the purpose of determining a consumer’s eligibility for any repayment plan; provided, however, that Customer may, consistent with the certification and limitations set forth in this section 1 subsection 4, use the Whooster Services for identifying, locating, or contacting a consumer in connection with the collection of a consumer’s debt or for prioritizing collection activities; and (D) Customer shall not use any of the information it receives through the Whooster Services to take any “adverse action,” as that term is defined in the FCRA.
(5) MVR Data. If Customer is permitted to access Motor Vehicle Records (“MVR Data”) from Whooster, without in any way limiting Customer’s obligations to comply with all state and federal laws governing use of MVR Data, the following specific restrictions apply and are subject to change; (A) Customer shall not use any MVR Data provided by Whooster, or portions of information contained therein, to create or update a file that Customer uses to develop its own source of driving history information. (B) As requested by Whooster, Customer shall complete any state forms that Whooster is legally or contractually bound to obtain from Customer before providing Customer with MVR Data. (C) Whooster (and certain Third-Party vendors) may conduct reasonable and periodic audits of Customer’s use of MVR Data. Further, in response to any audit, Customer must be able to substantiate the reason for each MVR Data order.
(6) HIPAA. Customer represents and warrants that Customer will not provide Whooster with any Protected Health Information (as that term is defined in 45 C.F.R. Sec. 160.103) or with Electronic Health Records or Patient Health Records (as those terms are defined in 42 U.S.C. Sec. 17921(5), and 42 U.S.C. Sec. 17921(11), respectively) or with information from such records without the execution of a separate agreement between the parties.
(7) Social Security and Driver’s License Numbers. Whooster may in its sole discretion permit Customer to access QA Data (The term “QA”, also referred to as Qualified Access, allows users to view full Social Security Numbers and full Driver’s License Numbers, as well as other personal identifying information such as name and address.). If Customer is authorized by Whooster to receive QA Data, and Customer obtains QA Data through the Whooster Services, Customer certifies it will not use the QA Data for any purpose other than as expressly authorized by Whooster policies, the terms and conditions herein, and applicable laws and regulations. In addition to the restrictions on distribution otherwise set forth in Section 2 below, Customer agrees that it will not permit QA Data obtained through the Whooster Services to be used by an employee or contractor that is not an Authorized User with an Authorized Use. Customer agrees it will certify, in writing, its uses for QA Data and recertify upon request by Whooster. Customer may not, to the extent permitted by the terms of this Agreement, transfer QA Data via email or ftp without Whooster’s prior written consent. However, Customer shall be permitted to transfer such information so long as: a) a secured method (for example, sftp) is used, b) transfer is not to any third-party, and c) such transfer is limited to such use as permitted under this Agreement. Whooster may at any time and for any or no reason cease to provide or limit the provision of QA Data to Customer.
(8) National Change of Address Database. Whooster or its various data vendors is or maybe a licensee of the United States Postal Service’s NCOALINK database (“NCOA Database”). The information contained in the NCOA Database is regulated by the Privacy Act of 1974 and may be used only to provide a mailing list correction service for lists that will be used for preparation of mailings. If Customer receives all or a portion of the NCOA Database through the Whooster Services, Customer hereby certifies to Whooster that it will not use such information for any other purpose. Prior to obtaining or using information from the NCOA Database, Customer agrees to complete, execute and submit to Whooster the NCOA Processing Acknowledgement Form.
(9) Retention of Records. For uses of GLB Data, DPPA Data and MVR Data, as described in Sections 1 subsections 2, 3 and 5, Customer shall maintain for a period of five (5) years a complete and accurate record (including consumer identity, purpose and, if applicable, consumer authorization) pertaining to every access to such data.
(10) Copyrighted and Trademarked Materials. Customer shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Whooster Services. .
(11) Additional Terms. Certain materials contained within the Whooster Services are subject to additional obligations and restrictions. Without limitation, these services include news, business information (e.g., Dun & Bradstreet reports), and federal legislative and regulatory materials. To the extent that Customer receives such materials through the Whooster Services, Customer agrees to comply with the General Terms and Conditions for Use of Whooster Services contained at the following website: www.Whooster.com (the “General Terms”). The General Terms are hereby incorporated into this Agreement by reference.
2. SECURITY. Customer acknowledges that the information available through the Whooster Services may include personally identifiable information and it is Customer’s obligation to keep all such accessed information confidential and secure.
(1) Customer Obligations. Customer is required to ensure that the following actions take place; (A) Restrict access to Whooster Services to those employees who have a need to know as part of their official duties; (B) Ensure that none of its employees shall: (i) Obtain and/or use any information from the Whooster Services for personal reasons, or (ii) Transfer any information received through the
Whooster Services to any party except as permitted hereunder; (C) Keep all user identification numbers, and related passwords, or other security measures (collectively, “User IDs”) confidential and prohibit the sharing of User IDs; (D) Immediately deactivate the User ID of any employee who no longer has a need to know, or for terminated employees on or prior to the date of termination; (E) In addition to any obligations under Section 1 above, take all commercially reasonable measures to prevent unauthorized access to, or use of, the Whooster Services or data received therefrom, whether the same is in electronic form or hard copy, by any person or entity; (F) Maintain and enforce data destruction procedures to protect the security and confidentiality of all information obtained through Whooster Services as it is being disposed; (G) Unless otherwise required by law, purge all information received through the Whooster Services and stored electronically or on hard copy by Customer within ninety (90) days of initial receipt; (H) Be capable of receiving the Whooster Services where the same are provided utilizing “secure socket layer,” or such other means of secure transmission as is deemed reasonable by Whooster; (I) Not access and/or use the Whooster Services via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Whooster; and (J) Take all steps to protect their networks, computer environments and mobile phones, or those used to access the Whooster Services, from compromise.
(2) Customer Review. Customer agrees that on at least a quarterly basis it will review searches performed by its User IDs to ensure that such searches were performed for a legitimate business purpose and in compliance with all terms and conditions herein.
(3) Customer Security & Notice. Customer will implement policies and procedures to prevent unauthorized use of User IDs and the Whooster Services and will immediately notify Whooster, in writing to the Whooster if Customer suspects, has reason to believe or confirms that a User ID or the Whooster Services (or data derived directly or indirectly therefrom) is or has been lost, stolen, compromised, misused or used, accessed or acquired in an unauthorized manner or by any unauthorized person, or for any purpose other than legitimate business reasons.
(4) Indemnity. Customer shall remain solely liable for all costs associated therewith and shall further reimburse Whooster for any expenses it incurs due to Customer’s failure to prevent such impermissible use or access of User IDs and/or the Whooster Services, or any actions required as a result thereof.
(5) Security Event. Furthermore, in the event that the Whooster Services provided to the Customer include personally identifiable information (including, but not limited to, social security numbers, driver’s license numbers or dates of birth), the following shall apply; (A) Customer acknowledges that, upon unauthorized acquisition or access of or to such personally identifiable information, including but not limited to that which is due to use by an unauthorized person or due to unauthorized use (a “Security Event”), (B) Customer shall, in compliance with law, notify the individuals whose information was potentially accessed or acquired that a Security Event has occurred, and shall also notify any other parties (including but not limited to regulatory entities and credit reporting agencies) as may be required in Whooster’s reasonable discretion. (C) Customer agrees that such notification shall not reference Whooster or the product through which the data was provided, nor shall Whooster be otherwise identified or referenced in connection with the Security Event, without Whooster’s express written consent. (D) Customer shall be solely responsible for any other legal or regulatory obligations which may arise under applicable law in connection with such a Security Event and shall bear all costs associated with complying with legal and regulatory obligations in connection therewith. (E) Customer shall remain solely liable for claims that may arise from a Security Event, including, but not limited to, costs for litigation (including attorneys’ fees), and reimbursement sought by individuals, including but not limited to, costs for credit monitoring or allegations of loss in connection with the Security Event, and to the extent that any claims are brought against Whooster, shall indemnify Whooster from such claims. (F) Customer shall provide samples of all proposed materials to notify consumers and any third-parties, including regulatory entities, to Whooster for review and approval prior to distribution. (G) In the event of a Security Event, Whooster may, in its sole discretion, take immediate action, including suspension or termination of Customer’s account, without further obligation or liability of any kind.
3. PERFORMANCE. Whooster will use commercially reasonable efforts to deliver the Whooster Services requested by Customer and to compile information gathered from selected public records and other sources used in the provision of the Whooster Services; provided, however, that Customer accepts all information “AS IS.” Customer acknowledges and agrees that Whooster obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Customer shall not rely on Whooster for the accuracy or completeness of information supplied through the Whooster Services. Without limiting the foregoing, the criminal record data that may be provided as part of the Whooster Services may include records that have been expunged, sealed, or otherwise have become inaccessible to the public since the date on which the data was last updated or collected. Customer understands that Customer may be restricted from accessing certain Whooster Services which may be otherwise available. Whooster reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of the Whooster Services. In the event that Whooster discontinues a material portion of the materials and features that Customer regularly uses in the ordinary course of its business, Whooster may, at Whooster’s sole discretion, issue a prorated credit to Customer’s account.
4. INTELLECTUAL PROPERTY; CONFIDENTIALITY. Customer agrees that Customer shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the Whooster Services’ information, programs or computer applications. Customer acknowledges that Whooster (and/or its third party data providers) shall retain all right, title, and interest under applicable contractual, copyright, patent, trademark, Trade Secret and related laws in and to the Whooster Services and the data and information that they provide. Customer shall use such materials in a manner consistent with Whooster’s interests and the terms and conditions herein, and shall notify Whooster of any threatened or actual infringement of Whooster’s rights. Notwithstanding anything in this Agreement to the contrary, Whooster or Whooster’s data provider shall own Customer’s search inquiry data used to access the Whooster Services (in the past or future) and may use such data for any purpose consistent with applicable federal, state and local laws, rules and regulations. Customer and Whooster acknowledge that they each may have access to confidential information of the disclosing party (“Disclosing Party”) relating to the Disclosing Party’s business including, without limitation, technical, financial, strategies and related information, computer programs, algorithms, know-how, processes, ideas, inventions (whether patentable or not), schematics, Trade Secrets (as defined below) and other information (whether written or oral), and in the case of Whooster’s information, product information, pricing information, product development plans, forecasts, data contained in Whooster Services, and other business information (“Confidential Information”). (A) Exclusions. Confidential Information shall not include information that: (i) Is or becomes (through no improper action or inaction by the Receiving Party (as defined below)) generally known to the public; (ii) Was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (iii) Was lawfully disclosed to Receiving Party by a third-party and received in good faith and without any duty of confidentiality by the Receiving Party or the third-party; or (iv) Was independently developed without use of any Confidential Information of the Disclosing Party by employees of the Receiving Party who have had no access to such Confidential Information. (B) Trade Secrets. “Trade Secret” shall be deemed to include any information which gives the Disclosing Party an advantage over competitors who do not have access to such information. Each receiving party (“Receiving Party”) agrees not to divulge any Confidential Information or information derived therefrom to any third-party and shall protect the confidentiality of the Confidential Information with the same degree of care it uses to protect the confidentiality of its own confidential information and trade secrets, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information solely to the extent required by subpoena, court order or other governmental authority, provided that the Receiving Party shall give the Disclosing party prompt written notice of such subpoena, court order or other governmental authority so as to allow the Disclosing party to have an opportunity to obtain a protective order to prohibit or restrict such disclosure at its sole cost and expense. Confidential Information disclosed pursuant to subpoena, court order or other governmental authority shall otherwise remain subject to the terms applicable to Confidential Information. Each party’s obligations with respect to Confidential Information shall continue for the term of this Agreement and for a period of five (5) years thereafter, provided however, that with respect Trade Secrets, each party’s obligations shall continue for so long as such Confidential Information continues to constitute a Trade Secret.
5. WARRANTIES/LIMITATION OF LIABILITY. Neither Whooster, nor its subsidiaries and affiliates, nor any third-party data provider (for purposes of indemnification, warranties, and limitations on liability, Whooster, its subsidiaries and affiliates, and its data providers are hereby collectively referred to as “ Whooster”) shall be liable to Customer (or to any person claiming through Customer to whom Customer may have provided data from the Whooster Services) for any loss or injury arising out of or caused in whole or in part by Whooster ‘s acts or omissions in procuring, compiling, collecting, interpreting, reporting, communicating, or delivering the Whooster Services. If, notwithstanding the foregoing, liability can be imposed on Whooster, then Customer agrees that Whooster’s aggregate liability for any and all losses or injuries arising out of any act or omission of Whooster in connection with anything to be done or furnished under this Agreement, regardless of the cause of the loss or injury, and regardless of the nature of the legal or equitable right claimed to have been violated, shall never exceed One Hundred Dollars ($100.00); and Customer covenants and promises that it will not sue Whooster for an amount greater than such sum even if Customer and/or third parties were advised of the possibility of such damages and that it will not seek punitive damages in any suit against Whooster. Whooster does not make and hereby disclaims any warranty, express or implied with respect to the Whooster Services. Whooster does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the Whooster Services or information provided therein. In no event shall Whooster be liable for any indirect, incidental, or consequential damages, however arising, incurred by Customer from receipt or use of information delivered hereunder or the unavailability thereof. Due to the nature of public record information, the public records and commercially available data sources used in Whooster Services may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. Whooster Services are not the source of data, nor are they a comprehensive compilation of the data. Before relying on any data, it should be independently verified.
(1) Indemnification, Customer. Customer hereby agrees to protect, indemnify, defend, and hold harmless Whooster from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) arising from or in any way related to (a) use of information received by Customer (or any third party receiving such information from or through Customer) furnished by or through Whooster; (b) breach of any terms, conditions, representations or certifications in this Agreement; and (c) any Security Event outlined in Section 2.
(2) Indemnification, Whooster. Whooster hereby agrees to protect, indemnify, defend, and hold harmless Customer from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) arising from or in connection with any third-party claim that the Whooster Services or data contained therein, when used in accordance with this Agreement, infringe a United States patent or United States registered copyright, subject to the following; (A) Customer must promptly give written notice of any claim to Whooster; (B) Customer must provide any assistance which Whooster may reasonably request for the defense of the claim; and (C) Whooster has the right to control the defense or settlement of the claim; provided, however, that the Customer shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
(3) Indemnity Limitations. Notwithstanding the foregoing, Whooster will not have any duty to indemnify, defend or hold harmless Customer with respect to any claim of infringement resulting from; (A) Customer’s misuse of the Whooster Services; (B) Customer’s failure to use any corrections made available by Whooster; (C) Customer’s use of the Whooster Services in combination with any product or information not provided or authorized in writing by Whooster; or (D) Any information, direction, specification or materials provided by Customer or any third-party.
(4) Injunction. If an injunction or order is issued restricting the use or distribution of any part of the Whooster Services, or if Whooster determines that any part of the Whooster Services is likely to become the subject of a claim of infringement or violation of any proprietary right of any third-party, Whooster may in its sole discretion and at its option; (i) Procure for Customer the right to continue using the Whooster Services; (ii) Replace or modify the Whooster Services so that they become non-infringing, provided such modification or replacement does not materially alter or affect the use or operation of the Whooster Services; or (iii) Terminate this Agreement and refund any fees relating to the future use of the Whooster Services. The foregoing remedies constitute Customer’s sole and exclusive remedies and Whooster’s entire liability with respect to infringement claims or actions.
7. AUDIT. Customer understands and agrees that, in order to ensure compliance with the FCRA, GLBA, DPPA, other similar state or federal laws, regulations or rules, regulatory agency requirements, this Agreement, and Whooster’s obligations under its contracts with its data providers and Whooster’s internal policies, Whooster may conduct periodic reviews of Customer’s use of the Whooster Services and may, upon reasonable notice, audit Customer’s records, processes and procedures related to Customer’s use, storage and disposal of Whooster Services and information received therefrom. Customer agrees to cooperate fully with any and all audits and to respond to any such audit inquiry within ten (10) business days, unless an expedited response is required. Violations discovered in any review and/or audit by Whooster will be subject to immediate action including, but not limited to, suspension or termination of the license to use the Whooster Services, reactivation fees, legal action, and/or referral to federal or state regulatory agencies.
8. SURVIVAL OF AGREEMENT. Provisions hereof related to release of claims; indemnification; use and protection of information, data and Whooster Services; payment for the Whooster Services; audit; Whooster’s use and ownership of Customer’s search inquiry data; disclaimer of warranties; security; customer data and governing law shall survive any termination of the license to use the Whooster Services.
9. EMPLOYEE TRAINING. Customer shall train new employees prior to allowing access to Whooster Services on Customer’s obligations under this Agreement, including, but not limited to, the licensing requirements and restrictions under Section 1 and the security requirements of Section 2. Customer shall conduct a similar review of its obligations under this Agreement with existing employees who have access to Whooster Services no less than annually. Customer shall keep records of such training.
10. ATTORNEYS’ FEES. Any action, claim or lawsuit brought pursuant to this Agreement entitles Whooster to payment of all attorneys’ fees and costs expended in association with such action, claim or lawsuit and shall include legal fees expended by in-house counsel for Whooster.
11. TAXES. The charges for all Whooster Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to Customer’s account.
12. CUSTOMER CHANGES/CREDIT REPORT. Customer shall notify Whooster immediately of any changes to the information on Customer’s Application for the Whooster Services, and, if at any time Customer no longer meets such procedures, Whooster may terminate this Agreement. Customer is required to promptly notify Whooster of a change in ownership of Customer’s company, any change in the name of Customer’s company, and/or any change in the physical address of Customer’s company. Furthermore, Customer acknowledges and agrees that, as part of the credentialing process, Customer’s credit report(s) may be requested by Whooster in accordance with Federal Fair Credit Reporting Act from one (1) or more consumer reporting agencies. Upon Customer’s request, Customer will be informed of whether any credit report was requested, and the name and address of the credit reporting agency that furnished the report to Whooster.
13. PRICING SCHEDULE. Customer agrees to pay Whooster for the services under this agreement in accordance with the prices as may be posted next to each search or report when the Customer logs in to use the service. Prices may be updated from time to time through online announcements, customer bulletins and published pricing lists. Whooster is not responsible for ensuring delivery of such updates, changes, additions, or deletions to any of its pricing policies or plans that may occur from time to time and its Customers responsibility to check the Whooster website for updates. All current and future pricing documents are deemed incorporated herein as reference.
14. RELATIONSHIP OF PARTIES. None of the parties shall, at any time, represent that it is the authorized agent or representative of the other.
15. CHANGE IN AGREEMENT. By receipt of the Whooster Services, Customer agrees to, and shall comply with, changes to the Restricted License granted Customer in Section 1 herein, changes in pricing, and changes to other provisions of this Agreement as Whooster shall make from time to time by notice to Customer via e-mail, online “click wrap” amendments, facsimile, mail, invoice announcements, or other written notification. All e-mail notifications shall be sent to the individual named in the Customer Administrator Contact Information section, unless stated otherwise in this Agreement. Whooster may, at any time, impose restrictions and/or prohibitions on the Customer’s use of the Whooster Services or certain data. Customer understands that such restrictions or changes in access may be the result of a modification in Whooster policy, a modification of third-party agreements, a modification in industry standards, a Security Event or a change in law or regulation, or the interpretation thereof. Upon written notification by Whooster of such restrictions, Customer agrees to comply with such restrictions.
16. PUBLICITY. Customer acknowledges that Whooster may from time to time use Customer’s name, logos, and feedback in Whooster press releases, advertisements, promotional or marketing materials. By signing this Agreement, Customer gives Whooster the express permission to take such actions. Customer further acknowledges that it will not name Whooster or refer to its use of the Whooster Services in any press releases, advertisements, promotional or marketing materials, or make any other third-party disclosures regarding Whooster or Customer’s use of the Whooster Services.
17. FORCE MAJEURE. The parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.
18. ENTIRE AGREEMENT. Except as otherwise provided herein, this Agreement constitutes the final written agreement and understanding of the parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to the use of the Whooster Services and all matters within the scope of this Agreement. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in this Agreement shall, with respect to the Whooster Services and all matters within the scope of this Agreement, supersede any separate non-disclosure agreement that is or may in the future be entered into by the parties hereto. Any new, other, or different terms supplied by the Customer beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the Customer, are specifically and expressly rejected by Whooster unless Whooster agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing. This Agreement can be executed in counterparts and faxed or electronic signatures will be deemed originals.
19. MISCELLANEOUS. If any provision of this Agreement or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of this Agreement shall remain in full force and effect. The headings in this Agreement are inserted for reference and convenience only and shall not enter into the interpretation hereof. Customer agrees to allow Whooster to communicate with Customer via the SMS texting platform for sales and other notifications. Customer can opt out of this service at any time.
20. DATA OWNERSHIP AND USE LIMITATIONS: Whooster may, from time to time, impose restrictions on the use of the Services as a result of changes in the law, limitations placed on Whooster from third parties or otherwise, which may limited User’s access to some or all of the data. User Login information may not be shared. Customer accounts will be locked without warning when Whooster has cause to believe that login information has been shared, enabling more than one individual to make concurrent use of the account. (A) Unauthorized Data Compilation. Customer acknowledges that it will not use any manual or automated software, devices, or other automated processes (including but not limited to spiders, robots, scrapers, crawlers, data mining tools, or the like, other than the search engine available as part of the Services) to “scrape” or download data from any web pages contained in the Service. Any attempt to “scrape or download data is strictly prohibited. (B) Intellectual Property. Customer acknowledges that Whooster and/or third parties retain all right, title and interest under applicable copyright and other laws in the databases and materials contained therein, used to provide Services hereunder, and Customer shall use such materials consistent with such right, title and interest and notify Whooster of any threatened or actual infringement or misappropriation. (C) Use Limitations. Customer further acknowledges that this Agreement grants Customer a limited license during the term of this Agreement, to use the data for its own business purposes, without right to sub-license, in exchange for payment of fees and charges set forth in this agreement. Customer shall not resell, reproduce, retransmit, publish or otherwise transfer for commercial exploitation any information that Customer receives from Services. Customer shall not use any information received from the Service for any purpose considered by Whooster or third parties as solicitation or marketing for goods or services. Customer acknowledges that Whooster maintains records of access to the Services in order to comply with State and Federal law, and with the requirements of third parties, and that in certain limited circumstances Whooster may be required to disclose that Customer accessed certain data in order to meet these requirements. Whooster will, from time to time, in the ordinary course of business, in order to fulfill its compliance obligations, routinely and randomly audit, through a variety of means, the use of information obtained by Customer from Whooster. Customer agrees to provide to Whooster such access or documentation as Whooster deems necessary to perform such audits in order to verify the legitimacy of a request for non-public and public information. Whooster shall protect the confidentiality of all information obtained through such audits. Customer acknowledges that failure to provide such access or documentation may result in immediate restriction of access or other remedies.
21. TERMINATION. This Agreement may be terminated by Whooster at any time, with or without notice or cause. Violation by Customer of state or federal laws or Whooster or Third Parties’ established policies and procedures may result in immediate termination of this Agreement at Whooster’ sole discretion. Provisions hereof related to indemnification, use of information and data, limitations of liability, payment for Services and disclaimer of warranties shall survive any termination of this Agreement. Customer may terminate this Agreement by submitting a cancellation letter and payment in full.
22. GOVERNING LAW. This Agreement shall be interpreted in accordance with the laws of the State of Texas, without regards to its conflict of law principles. Customer expressly agrees to submit to the jurisdiction District Court in Travis County, TX and federal courts in Texas, and not to assert any claim of forum non conveniens with respect to such submission.
23. NO ASSIGNMENT. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer shall not assign this Agreement (or any part thereof) without the prior written consent of Whooster. Any attempt to transfer or assign this Agreement except as expressly authorized will be null and void. Customer agrees that in the event of any reorganization, sale of all or substantially all its assets or voting securities, or any change of control “Change of Control” that (a) Customer will notify Whooster within ten (10) days and (b) the Change of Control will not extinguish any right of Whooster to payment or any obligation of Customer with respect to the Service.