Whooster, Inc. 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:
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.
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.
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 these Terms and Conditions 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 its 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 these Terms and Conditions 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.
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 these Terms and Conditions, 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.
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, these Terms and Conditions, 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.
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.
Customer shall train new employees prior to allowing access to Whooster Services on Customer’s obligations under these Terms and Conditions, 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 these Terms and Conditions with existing employees who have access to Whooster Services no less than annually. Customer shall keep records of such training.
Any action, claim or lawsuit brought pursuant to these Terms and Conditions 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.
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.
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 these Terms and Conditions. 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.
Customer agrees to pay Whooster for the services under these Terms and Conditions 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. Customer hereby understands and acknowledges, notwithstanding anything to the contrary, that after six (6) months of inactivity on their account all prepaid funds will be forfeited. For those customers depositing funds for a subscription that has a Purchase Order with an End Date or a Subscription Period End Date, any funds still available will be forfeited at the End Date. If the customer issues a new Purchase Order with an End Date or Subscription Period End Date immediately at the expiration of the previous Purchase Order, End Date or Subscription Period then the funds still on account will be available for 60 days after which they will be forfeited. Prepaid funds paid to Whooster on Accounts that do not have a monthly or annual subscription fee are non-refundable.
None of the parties shall, at any time, represent that it is the authorized agent or representative of the other.
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 these Terms and Conditions 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 Administrator – Primary Contact section of the Whooster Account Application, unless stated otherwise in these Terms and Conditions. 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.
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. 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.
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 these Terms and Conditions (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.
Except as otherwise provided herein, these Terms and Conditions constitutes the final written agreement and understanding of the parties and is intended as a complete and exclusive statement of the terms of the Terms and Conditions, 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 these Terms and Conditions. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in these Terms and Conditions shall, with respect to the Whooster Services and all matters within the scope of these Terms and Conditions, 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. These Terms and Conditions can be executed in counterparts and faxed, or electronic signatures will be deemed originals.
If any provision of these Terms and Conditions 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 these Terms and Conditions shall remain in full force and effect. The headings in these Terms and Conditions 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.
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 limit 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 these Terms and Conditions grants Customer a limited license during the term of these Terms and Conditions, 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 these Terms and Conditions. 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.
This Whooster Service 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 the Whooster Services 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 the Whooster Services. Customer may terminate the use of the Whooster Services by submitting a cancellation letter and payment in full.
These Terms and Conditions 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.
These Terms and Conditions will bind and inure to the benefit of each party’s permitted successors and assigns. Customer shall not assign these Terms and Conditions (or any part thereof) without the prior written consent of Whooster. Any attempt to transfer or assign these Terms and Conditions 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.