BY CLICKING “ACCEPT” AND REGISTERING FOR THESE TERMS OF SERVICE AND DATA LICENSE (THE “TERMS OF SERVICE” OR “AGREEMENT”) OR ACCEPTING THESE TERMS OF SERVICE IN ANOTHER MANNER WE PROVIDE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH ARE AN ENFORCEABLE AGREEMENT BETWEEN YOU (“YOU” OR “CLIENT”) AND WODWO, INC. (“WODWO” “WE” “US” “OUR”). Client and WODWO may each be referred to as a “Party” and or collectively referred to as the “Parties.” IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT AND WE DO NOT GRANT YOU THE RIGHT TO ACCESS OR USE OF THE WODWO PLATFORM.
WHEREAS, Wodwo provides a suite of data and data services, known as “Wodwo”;
WHEREAS, Client is interested in using the Wodwo services;
NOW, THEREFORE, in consideration of the promises set forth above and the mutual promises, agreements and conditions stated herein, the Parties agree as follows:
1. Definitions:
a. “Affiliate” means, with respect to a Party, any entity that is controlled by, controls, or is under common control with such Party.
b. “Downloaded Data” means any data that Wodwo provides to Client.
c. “Services” means any and all services provided by Wodwo to Client through the Wodwo platform, including any Downloaded Data, reports, or other data, as well as any technology (such as any API) through which such services or data are provided.
d. “Submission Data” means any and all customer information that Client provides to Wodwo in order to receive the Services.
2. Payment; Rates; and Taxes.
a. Payment and Rates. In exchange for the Services, Client agrees that it will pay Wodwo fees at the then-current rates set forth on our website (generally available at www.wodwo.co). Annualized increases may be put in place on or after January 1st of any given calendar year, provided that we provide thirty (30) days’ notice (to the last email address you have provided to us) and an opportunity to terminate Services.
b. Payment. Prior to the delivery of any Services to Client hereunder, Wodwo will charge Client’s credit card or other accepted payment instrument. Client agrees to keep its credit card information up to date, and understands that any default in such payment or payment method shall permit Wodwo to withhold data or services hereunder. Client understands that payment services (as well as handling and processing of payment information) are provided through an independent third party processor, which may have additional terms and conditions, including regarding acceptance of payments.
c. Taxes. Client is responsible for all sales and use taxes related to Wodwo’s provision of the Services (including the Downloaded Data) to Client.
3. Changes to the Services. Wodwo reserves the right to change the Services from time to time in our sole discretion and it will have no obligation to notify Client before or after any such change. Wodwo may provide and Client shall adhere to additional reasonable formatting requirements for the Submission Data.
4. No Refunds. Wodwo does not provide and Client shall not be entitled to refunds for the Services.
5. Term and Termination. Wodwo may in its discretion provide Client the opportunity to select either an annual (12-month) term or a month-to-month term (collectively and individually, the “Term”). Once selected, such Term shall govern with respect to all Client payment obligations. Subject to Client’s compliance with all provisions herein, such Term shall commence on the date Client signs up for or otherwise begins using the Services (the “Effective Date”), continue for the length of the term, and continue to renew for consecutive terms of equal length to the Term until and until terminated by either Party (through an applicable electronic or online method provided by Wodwo) at least thirty (30) days prior to the end of a Term (the initial term and any subsequent renewal term, collectively the “Term”), provided that where the Term is a month-to-month term, it shall be terminable on 24 hours’ written notice. Wodwo may terminate these Terms of Service at any time (and cease providing the Services), upon a reasonable belief that Client has breached this Agreement, or where it ceases providing or substantially changes the Services. If Wodwo’s termination is based on Client’s violation of any covenant, representation, warranty or obligation herein, Client shall immediately delete all Downloaded Data. If Wodwo’s termination is for any other reason (or no reason), Client may continue to use the Downloaded Data as set forth herein through the expiration of the then-current Term, at which time Client shall delete such Downloaded Data within fifteen (15) days.
6. Deletion of Submission Data. Wodwo shall delete from its systems and servers all Submission Data within 24 hours of receipt of such Submission Data, absent written request from a Client that such information be retained. In addition (to the extent not already deleted) upon termination, Wodwo.
7. Proprietary Rights. Title to and ownership of all information, systems, software, code, tools, methodologies, specifications, techniques, and other technology and know-how owned by a Party or in the possession of such Party prior to the Effective Date, or developed by a Party after the Effective Date without the use of the other Party’s Confidential Information (and any intellectual property rights therein), shall remain with such Party. All Downloaded Data and technology and data used to create and deliver it shall remain the exclusive property of Wodwo. The Submission Data shall remain the exclusive property of Client; for avoidance of doubt, Wodwo shall have no rights to use, model or create any product with the Submission Data except to provide the Services.
8. Data Usage
a. Mutual. Each Party represents and warrants that it has and shall maintain the legal right and authority to use the respective data (whether Submission or Downloaded Data) that it provides to the other Party, or that it employs within its own solutions and products. Each Party represents that it is duly authorized to enter into the obligations set forth herein.
b. By Wodwo. Without limitation of the foregoing, Wodwo shall only use the Submission Data as set forth herein or as otherwise requested by Client.
c. By Client. Without limitation of the foregoing, Client shall not use the Downloaded Data or any other portion of the Services in violation, or to facilitate the violation, of any law, regulation or agreement to which it is a party, including, without limitation and to the extent applicable, the California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), the General Data Protection Regulation (Regulation (EU) 2016/679) (to the extent applicable), and the Fair Credit Reporting Act (FCRA) the Can-Spam Act. Client further represents and warrants that it shall in a legally sufficient manner disclose how it employs the personal information it handles, including with respect to the Submission and Downloaded Data, and that it shall not use the Downloaded Data in any manner that violates its own privacy policy. If Client is a business or other form of entity, any party that accepts and enters into these Terms of Service on behalf of Client represents and warrants that such party has the authority, the rights, and the capacity to legally bind Client to the terms hereto.
9. Licenses and Restrictions. Wodwo grants Client a non-transferrable, non-sublicensable, non-assignable (except as set forth herein), world-wide, non-exclusive, limited license to access and use the Downloaded Data for Client’s own internal purposes on a one-time use basis, such as for a single mailing or communication (except where the parties agree in writing to additional use rights), provided that (subject to such single-use limitation) Client may store the Downloaded Data for up to twelve (12) months from the date of download.
a. Resale Prohibited. The Downloaded Data may be used solely for Client’s own internal business or marketing purposes. Client may not sell, lease, rent or provide to any other party the Downloaded Data (in whole or in part) or a functionally equivalent derivative of the Downloaded Data, or create any service from the Downloaded Data. If Client wishes to resell the Services or the Downloaded Data, Client may contact Wodwo, and any such resale or relicensing shall be negotiated under a separate agreement.
b. Restricted Marketing Activities. Client shall not use the Services (including, without limitation any Downloaded Data) to advertise, sell, or promote products or services supporting, relating to or promoting (absent express, supplemental written agreement between the Parties permitting it to do so and expressing amending this provision):
(i) libelous speech or product disparagement,
(ii) illegal or fraudulent activities,
(iii) pornography,
(iv) tobacco products (including e-cigarette products),
(v) weapons, including firearms of any type or ammunition,
(vi) hate speech, directed against any societal group, including where based on race, ethnicity, religion, heritage, sexual orientation, gender or gender identity, or nation of origin,
(vii) violence of any sort, including against the U.S. government,
(vii) fraudulent or deceptive claims about any product or service,
(viii) products that violate copyrights or trademarks,
(ix) credit repair products,
(x) the sale of particular “pink sheet” or over-the-counter stocks,
(xi) the sale of “psychic” or “astrology” services, or promotion of sweepstakes,
(xii) the sale of pharmaceuticals, nutraceuticals or cannabis products,
or
(xii) any product or service that is illegal in the place in which it is offered or delivered.
c. Can-Spam. Client shall not send any emails using the Services (including, without limitation, any Downloaded Data) unless such email contains and respect a valid and working “unsubscribe” from sender option, identifies the sender as required under the Can-Spam Act, and is non-fraudulent in nature.
d. Wireless Phone Numbers. Client understands and agrees that should Wodwo provide wireless phone numbers to Client, Client shall be solely responsible for compliance with all laws related to the use of such phone numbers, including without limitation (a) the Telephone Communication Protection Act (TCPA), (b) the FTC Telemarketing Sales Rule, (c) the Telemarketing Consumer Fraud and Abuse Prevention Act, and (d) all federal state laws and regulations regarding the use of telephone numbers, including compliance with state and federal “do not call” registries and restrictions.
e. Prohibited Data. Client represents and warrants that the Submitted Data does not and will not contain any information that is subject to (a) HIPAA (the Health Insurance Portability and Accountability Act), (b) GLBA (the Gramm Leach Bliley Act), (c) COPPA (the Childrens’ Online Privacy Protection Act) (d) GDPR (the General Data Protection Regulation) or (e) the FCRA (the Fair Credit Reporting Act), absent further agreement and implementation of necessary documentation by the Parties.
f. Information Safeguards. Each Party shall maintain an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size, the complexity, nature and scope of its activities, and the sensitivity of any data transferred to it by the other Party. Each Party shall inform the other within 48 hours if the other Party’s data (i.e., the Submission Data or Downloaded Data, respective) has been acquired by an unauthorized third party, and shall take all reasonable steps (at its own expense) to assist the other in securing the return or deletion of such data.
g. for one year from the date of download, subject to Client’s compliance with all terms herein, and with the foregoing restrictions.
10. DISCLAIMER AND LIABILITY LIMITATIONS. THE DOWNLOADED DATA MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THUS, THE DOWNLOADED DATA IS PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLIENT’S USE OR RELIANCE UPON THE DOWNLOADED DATA IS AT ITS OWN RISK. WODWO MAKES NO (AND DISCLAIMS ANY) WARRANTIES, EXPRESS OR IMPLIED, HEREUNDER AS TO THE DOWNLOADED DATA OR ANY OF ITS OTHER SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WODWO’S AND ITS LICENSORS’ AND AFFILIATES’ AGGREGATE LIABILITY TO END USER, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID BY CLIENT FOR THE DATA OR SERVICES TO WHICH THE INCIDENT RELATES. IN NO EVENT SHALL COMPANY OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.
11. Indemnification. Client shall indemnify, defend and hold Wodwo, its agents, Affiliates, and licensors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses, including reasonable fees of attorneys and other professionals (each a “Claim”), arising out of or in connection with any allegation by a third party that Client has breached any covenant or warranty herein, or used the Services (including, without limitation, the Downloaded Data) in a manner that violates any law.
12. Indemnification Procedures. To seek any indemnification hereunder, the indemnified Party must (i) promptly notify the indemnifying Party in writing of the Claim; (ii) grant the indemnifying Party sole control of the defense (except that the indemnified Party may, at its own expense, assist in the defense); and (iii) provide the indemnifying Party, at the indemnifying Party’s expense, with all reasonable assistance, information and authority reasonably required for the defense of the Claim. In no event shall the indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) which imposes any obligation on the indemnified Party without the prior written consent of the indemnified Party.
13. IMPORTANT FCRA RESTRICTIONS. Wodwo is not a consumer-reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA“) and the Services (including the Downloaded Data and any reports comprising a part of the Services) do not constitute “Consumer Reports,” as that term is defined in the FCRA. Client will not use or provide the Services for any purposes enumerated in the FCRA in lieu of obtaining a Consumer Report. Client will not use or provide the Services or any portion thereof (including, without limitation, the Downloaded Data):
a. in connection with establishing a consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, or in connection with assessing risks associated with existing credit obligations of a consumer;
b. for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee;
c. for any tenancy verification or in connection with any application to rent real property;
d. in connection with a determination of a consumer’s eligibility for a license or other benefit that depends on an applicant’s financial responsibility or status;
e. as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation;
f. in connection with any information, service or product sold or delivered to a “Consumer” (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a Consumer Report; or
g. for any other purpose under the FCRA.
Client will not use or provide Wodwo services or data for the preparation of a Consumer Report or in such a manner that may cause such data to be characterized as a Consumer Report. Client agrees that it will not take any “Adverse Action” (as that term is defined in the FCRA), which is based in whole or in part on the Services, against any Consumer.
14. Confidentiality
a. Confidential Information. “Confidential Information” means the following (whether orally, in writing, or in any other form): (a) the Downloaded Data and the Submission Data; and (b) any and all non-public or proprietary information and data of a Party that a Party (the “Disclosing Party”) discloses to the other Party (the “Receiving Party”) in connection with the Services or these Terms of Service which are known or reasonably should be known to be confidential.
b. Restrictions on Disclosure and Use. As between the Parties, Confidential Information is, and at all times shall remain, the property of the Disclosing Party. The Parties shall: (i) maintain the confidentiality of each other’s Confidential Information and not disclose it to any third party, except as authorized by the original disclosing Party in writing; (ii) restrict disclosure of, and access to, Confidential Information of the other Party to employees, contractors, agents or consultants who have a “need to know” in order for the Party to perform its obligations or exercise its rights under these Terms of Service, and who are bound to maintain the confidentiality of the Confidential Information by the terms of nondisclosure no less restrictive than those contained herein; (iii) handle Confidential Information of the other Party with the same degree of care the Receiving Party applies to its own Confidential Information, but in no event, less than reasonable care; (iv) use the Confidential Information of the other Party only for the purpose of performing, and to the extent necessary, to fulfill their respective obligations under these Terms of Service; and (v) promptly notify each other upon discovery of any unauthorized use, access or disclosure of the Confidential Information of the other Party, take reasonable steps to regain possession and protection of the Confidential Information of the other Party, and prevent further unauthorized action or breach of these Terms of Service with respect to the Confidential Information of the other Party.
b. Exceptions. Confidential Information does not include information that: (i) previously known, or received rightfully by the receiving Party without any obligation to keep it confidential; (ii) distributed to third parties by the Disclosing Party without restriction; (iii) explicitly approved for release by written authorization of the Disclosing Party; (iv) publicly available other than by unauthorized disclosure by the Receiving Party; (v) independently developed by the Receiving Party without the unlawful use of any of the disclosing party’s Confidential Information or any breach of these Terms of Service; or (vii required to be disclosed under applicable law, court order, or other governmental authority lawfully demanding the Confidential Information, provided that the receiving party complies with the obligations set forth immediately below. Notwithstanding the foregoing, all Downloaded Data shall be considered Confidential Information.
c. Required Disclosure. If a Receiving Party is required to disclose Confidential Information of the other Party under applicable law, court order or other governmental authority lawfully demanding the Confidential Information, the Receiving Party shall: (i) to the extent legally permissible, give the Disclosing Party prompt written notice of the request and a reasonable opportunity to object to the disclosure and to seek a protective order or other appropriate remedy; (ii) use reasonable efforts to limit disclosure; (iii) disclose only the Confidential Information specifically required and only to the extent compelled to do so; and (iv) maintain confidentiality after the required disclosure.
16. Injunctive Relief. Client acknowledges that its breach of Section 9 would result in irreparable harm and significant injury to Wodwo, which would be difficult to ascertain. In the event of such a breach, Wodwo therefore shall have the right to seek (in addition to and without exclusion of any other remedies available to it at law or in equity) immediate injunctive relief, without posting bond; Wodwo likewise shall be entitled to reimbursement from Client for reasonable attorneys’ fees and costs where Wodwo is a prevailing party in any such action.
17. Relationship of the Parties. The Parties to this Agreement are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the Parties. For purposes of state laws that recognize a distinction between “controllers” and “processors” of data, (a) each party shall act as an independent controller of the Downloaded Data in its possession, (b) Client is and shall act as controller of the Submission Data, and (c) Wodwo is and shall act as a processor of the Submission Data in its possession. For purposes of California privacy laws, which recognize a distinction between “businesses” and “service providers” of data, (a) each party shall act as an independent business with respect to the Downloaded Data in its possession, (b) Client is and shall act as business with respect to the Submission Data, and (c) Wodwo is and shall act as a service provider with respect to the Submission Data in its possession.
18. Miscellaneous. Neither Party shall assign, sublicense or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may freely assign this Agreement to: (i) any Affiliate of such Party; (ii) any successor in interest whether by merger, reorganization or otherwise; or (iii) any purchaser of all or substantially all of its assets, provided further that such assigning Party must promptly notify the non-assigning Party in writing of such assignment and further provided that within 60 days of notice of such assignment the non-assigning Party may terminate the Agreement if it deems such assignment to be to a competitor. This Agreement and any referenced links or other materials hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all written or oral prior or contemporaneous agreements and understandings between the Parties regarding the subject matter described herein. The Parties to this Agreement are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the Parties. This Agreement may not be modified or amended without the express written consent of each of the Parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to conflict of laws principles. The exclusive jurisdiction and venue for all disputes arising out of these Terms of Service shall be the federal and/or state courts located in the State of New Jersey. The Parties’ obligations to one another shall be excused and/or postponed during and for the duration of any force majeure event and shall resume as soon as practicable after the event has ended. The following sections shall survive the expiration or termination of these Terms of Service: Sections 1 (as applicable), and 4 through 18.