Last Updated: 30
November 2018
These Terms of Use constitute a binding contract between You and Wireless Media Consulting, Inc. d/b/a WMC Global ("WMC"). Your access to and/or continued use of the WMC websites located at portal.wmcglobal.com and www.wmcglobal.com (including any successor sites), or other features, applications, emails, content, downloads, products, or services (including an online portal to input Data in order to generate a RISQ Score) (collectively, the "Services") operated by WMC, constitutes Your acceptance, without limitation, to the terms and conditions of these Terms of Use. If You do not agree to be bound by these terms, You may not access or use the Services.
1) DEFINITIONS
The following capitalized terms bear the following meanings:
"Action" means any claim, suit, action, regulatory investigation, regulatory request, administrative hearing, or proceeding.
"Affiliate" means, with respect to a specified Person, any other Person that is Controlled by, Controls, or is under common Control with such Person.
"AUP" means WMC's acceptable use policy, as modified from time to time, and which is posted on a website by which You may access the Services.
"Carrier" means a provider of wireless communications services.
"Confidential Information" means all proprietary or confidential data or information of WMC and any of its Affiliates, customers, and third-party licensors, which a reasonable person in similar circumstances would consider confidential that You receive ("Recipient") from WMC ("Discloser."). Confidential Information of WMC includes WMC Information, WMC Proprietary Materials, and the RISQ Score. Notwithstanding anything to the contrary, Confidential Information will not include information to the extent it (a) is, or becomes, a part of the public domain through no wrongful conduct of Recipient; (b) was, or is, lawfully disclosed to Recipient by a third party without restriction on subsequent use or disclosure; (c) was previously known without restriction; or (d) is independently developed by Recipient without use of any Confidential Information of Discloser.
"Consent" means all consents, permits, licenses, rights, regulatory approvals, authorizations, and applicable import/export control approvals that are required for WMC, it Affiliates, employees, suppliers, licensors, or contractors to provide the Services and permissibly use the output of the Services, for You to receive the Services, and for third parties with a permissible purpose to use the output of the Services (e.g., a RISQ Score).
"Control" means the ability, directly or indirectly, to direct the affairs of a Person by means of ownership, contract, or otherwise.
"FCRA" means the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., as amended, and any state laws governing similar subject matter.
"Feedback" means any suggestions, ideas, enhancement requests, feedback, recommendations, or other information.
"Fees" means any fees set forth in an Agreement, Schedule, Order, invoice, or other legally-enforceable mechanism as agreed to by the Parties, which are subject to change by WMC upon 30 days' notice to You.
"IPR" means patents, patent applications, unpatented inventions, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, including all derivatives, improvements or enhancements thereof, and forms of protection of a similar nature anywhere in the world.
"Law" means all applicable laws, statutes, codes, rules or regulations, reporting requirements, judicial interpretation, ordinances, orders, decrees, judgments, consent decrees, settlement agreements, or other pronouncements having the effect of law of the United States, any foreign country, or any domestic or foreign state, county, city, or other political subdivision, including those promulgated, interpreted, or enforced by any governmental, regulatory, or self-regulatory authority.
"Losses" means any and all costs, liabilities, losses, and expenses, (including reasonable attorneys' fees).
"Message Sender" means a Person who wishes to send messages from an application on a Carrier's network and who has executed appropriate agreements to submit Message Sender information for generation of a RISQ Score.
"Minimum Requirements" means the minimum browser, hardware, software, and other system requirements that You would need to operate the Services, which may be provided separately or may be posted on a website by which You access the Services.
"OSS" means software or components (including "freeware," "shareware") licensed under an agreement with terms requiring, as a condition of use of such software or component, that the Services, Software, or WMC Proprietary Materials be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, (c) redistributable at no or nominal charge; or (d) redistributable under terms of such agreement or other terms not approved in advance in writing by WMC.
"Credentials" means the unique and confidential log-in details (e.g., usernames and passwords) that allow You to access and use the Services.
"Data" means data or content provided, generated, transmitted, or displayed by or on behalf of You, or in use of the Services, including Personal Data and Message Sender information. Notwithstanding anything to the contrary, Data does not include WMC Proprietary Materials.
"Personal Data" means an individual's (including a Message Sender's) name in combination with an address, Social Security number, driver's license number, financial account number including credit or debit card number, passport number, or date of birth; consumer report information; account credentials (username and password/PIN); biometric data; health data; or medical insurance data.
"Permitted Use" means the internal business use of the Services by You in connection with and in compliance with applicable Law (including but not limited to the FCRA), including use to submit Data to generate a RISQ Score for a Message Sender and provide such RISQ Score to designated Carriers. RISQ Scores expire one (1) month after date of issuance and may not be used once expired. New RISQ Scores may be applied for at any time.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Prohibited Data" means the following types of data: (a) data that is classified, and/or used on the U.S. Munitions List or similar law in other applicable jurisdictions, including software and technical data; (b) articles, services, and related technical data, designed as defense articles or defense services; (c) International Traffic in Arms Regulations related data; and (d) any data for which You do not have Consent or other right under applicable Law to transfer or provide to WMC.
"Resultant Data" means: (a) metadata associated with Data and Your Confidential Information, and (b) other data or metadata captured by WMC by virtue of the Services, Software, or outside of the Services.
"RISQ Score" means a score from 1 to 100, along with summaries and high-level risk indicators, indicating the level of risk assigned to a particular Message Sender.
"Software" means the software, and all IPR contained therein, used by WMC to provide the Services, and any modifications, enhancements, extensions, translations, derivatives, programming code, updates, improvements, new features, versions, and correction of errors related to, or associated with, the software.
"Third-Party Materials" means data, software, products, or services licensed to WMC by a third party.
"WMC Indemnitee" means WMC, its Affiliates, its and their employees, agents, suppliers, licensors, contractors, directors, and representatives.
"WMC Information" means data and information, including WMC's Confidential Information, the Services, Software, and Resultant Data created, or otherwise owned, by WMC, or licensed by WMC, from third parties.
"WMC IP" means the IPR owned by or licensed to WMC, and all derivatives, improvements or enhancements thereto.
"WMC Proprietary Materials" means Services, Software, Updates, WMC IP, WMC Information, Resultant Data, Feedback, and, in each instance, all derivative works and improvements thereto.
2) SERVICES
Permitted Uses: You may access and use such portions of the Services for which neither registration nor a fee is required (but not any other portions of the Services, including, without limitation, any registration-based or Fee-based features or services for the following "Permitted Uses": (1) review of Data, and/or (2) other permitted use(s) as set forth in another WMC agreement to which You are a party or that governs Your use hereof.
You may download and print information from the Services in connection with these Permitted Uses. WMC reserves all rights not expressly licensed. If You desire to access or use any registration-based or Fee-based products, You may be required to agree to a separate WMC agreement that governs the terms of such use. Only one individual may have access Your WMC account.
Prohibited Uses: You may not permit any Person, directly or indirectly, except in connection with a Permitted Use, to:
o Use the Services other than as authorized by these Terms of Use;
o Use the Services without implementing any applicable Minimum Requirements;
o Use the Services or a RISQ Score for the benefit of any third party, in the operation of any outsourcing arrangement, service bureau, time share services, or in violation of applicable Law;
o Republish or distribute information from the Services (including by posting the same on any other website);
o Modify information from the Services;
o Alter, modify, disassemble, decode, decompile, reverse engineer or otherwise attempt to derive source code, or other trade secrets, from the Software, Services, or a RISQ Score;
o Take any action that would impede or interfere with the operation of the Services, alter the contents of the Services, or alter or interfere with any other content, site, or software that WMC owns or controls;
o Copy, license, sell, distribute, lease, rent, lend, publish, resell, make available, sublicense, otherwise transfer or assign, or otherwise exploit the Services or a RISQ Score or access thereto;
o Bypass or breach any security used by the Services;
o Input, upload, transmit, or otherwise provide to, or through the Services, any information or materials that are in violation of Law, injurious, contain, transmit or activate any viruses, malicious or harmful code, or any other similar software or programs that may access or damage the operation of the Services;
o As applicable, act in a manner intended to avoid incurring Fees, or exceeding any restrictions or limitations set forth in these Terms of Use;
o Remove proprietary notices;
o Use the Services or a RISQ Score in any situation where failure or fault of the Services or a RISQ Score could lead to death or serious bodily injury of any person, or to physical or environmental damage;
o Use any OSS in connection with the Software or Services;
o Directly or indirectly, change, recompile, reframe, rent, sell, distribute, or publish any of the Services, any database thereon and/or any content thereon, or any portion thereof;
o Use any data mining, robots, or similar data gathering and extraction methods with respect to the Services or any portion thereof;
o Use the Services directly or indirectly in competition with WMC in any way whatsoever;
o Use the Services for unauthorized commercial solicitations or advertising; or
o Engage in any other prohibited use(s) set forth in any other WMC agreement to which You are a party or that governs Your use hereof.
Right to
Access
o General. Subject to Your payment of applicable Fees and compliance with these
Terms of Use, WMC agrees to provide You a limited,
personal, non-transferable, non-exclusive, and revocable right for You to
access and use the Services and applicable features (e.g., RISQ Scores) for the
Permitted Uses. No license rights are
granted except as expressly provided herein. WMC reserves all rights not
otherwise expressly granted hereunder. WMC reserves the right,
for any reason and without notice, in its sole discretion, to terminate,
change, suspend, or interrupt access, in whole or in part, to the Services. WMC
further reserves the right to impose registration, password, and other security
precautions on access to and use of the Services. You will ensure that all use
of fully complies with these Terms of Use.
o
Credentials.
WMC may provide You with Credentials to access the Services. Any information
You provide must be correct, current, and complete. You are responsible for use
of Your account, for maintaining the confidentiality of Your Credentials, and for
restricting access to Your computer(s). You accept responsibility for
all activities that occur under your account or password, and such use will be
deemed to be use by You. WMC reserves the
right to inspect and reassign usernames that it feels, in its sole discretion,
to be obscene, defamatory, harassing, or malicious. You agree to select unique,
non-obvious passwords. WMC may require that You periodically register Your use
of the Services including through automatic methods to verify authorized use.
o
Internet Access.
All access to the Services will be via the Internet. WMC does not guarantee the
privacy or security of any information transmitted to, or from, You over the
Internet. You are responsible for supplying your own link or access to the
Internet and are solely responsible for controlling access to the Services. You
agree to employ appropriate methods, including encryption and secure
communication lines, to secure the privacy and security of any Personal Data
and Data and to minimize the risk of unauthorized access to the Services and
the Software. WMC makes no
guarantee as to, and has no responsibility for, the integrity or accuracy of
Personal Data or Data provided to WMC or WMC's Services.
o
Third-Party Products and Services. Third-Party Materials accessible via the Services have
been acquired by WMC from third-party providers. Such Third-Party Materials are
the proprietary and exclusive property of the respective third-party providers,
and no interest in the Third-Party Materials, or the right to use the Third-Party
Materials, is conveyed, licensed, or otherwise transferred hereunder. You
acknowledge and agree that access to, and use of, the Third-Party Materials is
not guaranteed, and that You may be required to agree to additional terms or
secure separate licenses to access and use the Third-Party Materials. You will
comply with any terms of use or other procedures as required by WMC's cloud
service provider.
o
Change in Services.
WMC, in its sole discretion, may from time to time make additions to, deletions
from, or modifications to the Services, specifications, and/or communications
facilities. WMC will make reasonable efforts to notify You, including through
the posting of changes online, upon adoption of material modifications. WMC is
not obligated to provide the Services in the present form, under the current
specifications or requirements, with the current software, or to continue to
use existing communications facilities. Continued receipt, or use, by You of
the Services or Software after any modification will constitute Your acceptance
of such modification.
o
Audit Rights.
WMC may, upon reasonable notice, audit Your compliance with these Terms of Use,
including review of the applicable agreements and Consents between You and
Message Sender, and any books and records relating to such agreement or the use
of the Services or Software. Without limiting WMC's remedies, if the audit
uncovers that WMC has been underpaid or unpaid, You
will pay those Fees and WMC's costs incurred in conducting the audit within
fifteen (15) days of written notification of the amounts owed. If You fail to
pay the amounts owed, WMC has the right to terminate the rights granted herein.
If an audit reveals material noncompliance with these Terms of Use, WMC may
terminate for material breach and You will pay, in addition to any Fees due and
other remedies WMC may have at Law, all costs of such audit.
o
Changes in Law.
In the event a change in applicable Laws or interpretation of applicable Laws
makes the continued performance of Your or WMC's obligations in connection with
the Services, in WMC's sole reasonable discretion, unlawful or commercially
unreasonable to provide, then WMC may terminate this Agreement upon notice to You
and without any further obligation to You, except the return of the portion of any
prepaid Fees for periods after the effective termination date.
o
RISQ Scores.
As applicable:
■
Provision to Carriers and Other Permitted Persons. WMC may disclose RISQ Scores (and any updates thereto) to
any Carriers or other Persons, including the CTIA, to whom WMC has a business
relationship, and as permitted or required by applicable Law. You will obtain
Consent necessary for such disclosure of RISQ Scores.
■
Time Limitation on
Validity of RISQ Scores. A RISQ Score
disclosed by WMC is valid for thirty (30) days from its date of creation when
being submitted to a new entity for evaluation, and one (1) year from its date
of creation for all other purposes. You agree not to use RISQ Scores for any
purposes outside of their validity period for the purpose used, and WMC will
neither disclose RISQ Scores outside of their validity periods for the intended
purpose nor warrant their accuracy or completeness outside of their validity
periods.
■
Correction Requests.
Should You or Message Sender reasonably dispute the accuracy of information in
a RISQ Score, You or Message Sender may request a correction by providing
written notice of such dispute to WMC and submitting in writing additional,
independently verifiable information along with a request for recalculation,
all in accordance with WMC's defined procedures, as WMC may modify from time to
time, which may be provided separately or may be posted on a website by which You
access the Services. RISQWMC will consider such requests in accordance with its
policies and procedures, and respond within thirty (30)
days of receipt of such request, provided such request is not frivolous.
3) YOUR RESPONSIBILITIES
You will and will require any Person that You permit access to the Services to: (a) comply with the AUP and any other policies or terms made available in connection with the use of the Software or Services; (b) obtain and maintain all Consents, including those to permit access, use, and other rights with respect to Data or Your systems; (c) provide immediate notice of Prohibited Data available via the Services, breach or threatened breach of these Terms of Use, or breach or threatened breach of security; (d) notify WMC immediately in writing in the event that any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction, use of the Services or the Software is found; and (e) establish and maintain appropriate, but no less than industry standard, security, virus protection, backup, and disaster recovery plans for any data, software, equipment, and networks. If a virus is found, You will use commercially reasonable efforts to assist WMC in mitigating the effects at Your expense.
Your are solely responsible for, and WMC has no responsibility or liability to You or to any Person for (a) Data; (b) determining the suitability or the legality of the Data; (c) as applicable, use of a RISQ Score in compliance with Laws and these Terms of Use; (d) compliance of Data with Laws; (e) ensuring the Data does not contain Prohibited Data; (f) the editorial content or the particular arrangement, organization, and order of availability of Data; (g) encryption of all Personal Data prior to providing to WMC such Personal Data or using such Personal Data in connection with the Services; (h) as applicable, entering into agreements with Message Senders, including obtaining Consents, provided You may not make any representations or warranties on behalf of WMC; and (i) back up of Data (and WMC has no obligation to provide You with any access to Data in WMC's possession).
Your Representations and Warranties. You represent, warrants, and covenant that (a) You have all requisite legal authority to enter into and be bound by these Terms of Use; (b) You will comply with all Laws, including those applicable to the use of the Services, a RISQ Score, and the provision of Personal Data; (c) all Data or other materials or information provided by or on behalf of You, or processed or used by You, do not and will not infringe or misappropriate the rights of any third party or Person; and (d) You have obtained all Consents necessary for WMC to provide Services and for You to provide the Data.
Export Controls. You acknowledge that the Services are not designed with security and access management for processing Prohibited Data. You will not, and will not permit any Person, to provide any Prohibited Data to, or process any Prohibited Data through the Services, the Software, or WMC personnel. You are solely responsible for reviewing all Data, and will ensure than no Data constitutes, or contains, any Prohibited Data. You represent and warrant that You are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons, or are otherwise a person to whom WMC is legally prohibited to provide the Services.
Fair Credit Reporting Act Compliance. As applicable, you will comply with the FCRA and any other Law governing request for or use a RISQ Score or supply of information related to the creation of a RISQ Score. You acknowledge that a RISQ Score is considered a consumer report under the FCRA. You will implement processes and procedures to ensure compliance with the FCRA and any other Law governing use of a RISQ Score or supply of information related to the creation of the RISQ Score. Without limiting the foregoing, You will obtain express, written Consent of each individual of which You intend to obtain a RISQ Score, or otherwise hves a permissible purpose to obtain a report under the FCRA. You must maintain records of such individual's Consent and other documents related to Your compliance with this section for ten (10) years after the termination of Your use of the Services. You will provide WMC, at You cost and expense, with all such records at WMC's request. You will use the RISQ Score solely as permitted under the FCRA and these Terms of Use and will not use the RISQ Score for marketing purposes. WMC will not be required to provide any Service or a RISQ Score that WMC believes would be in violation of the FCRA or any other Law governing use the RISQ Score or supply of information related to the creation of a RISQ Score, and failure of WMC to provide the Services or a RISQ Score based on the foregoing shall not be a breach of this agreement by WMC. You will indemnify and hold harmless WMC Indemnitees from all Losses resulting from any Action arising from or connected to Your violation(s) of the FCRA or any other Law governing the request for or use of a RISQ Score or supply of information related to the creation of a RISQ Score.
4) PROPRIETARY RIGHTS
WMC Ownership: You agree not to take any action that would infringe, misappropriate, or violate WMC's or any third party's intellectual property or other proprietary interests. All rights, title and interest (including all copyrights, trademarks and other intellectual property rights) in and to the Services belong to WMC or its licensors. WMC will be free to use the general knowledge, skills, and experience of its personnel, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Services. If You acquire any rights to the WMC Proprietary Materials, You hereby assign all of those rights to WMC or its licensors, as applicable. WMC owns, at creation, all right, title, and interest in, and to Feedback provided by You or any Person relating to the Services. You may not use WMC's name, trademarks, or logo without WMC's prior written consent in each instance.
All materials supplied to You or authorized under these Terms of Use, including printed matter or electronic data, remain the sole property of WMC. Except as expressly provided, nothing contained herein shall be construed as conferring any license or right, by implication, estoppel, or otherwise, under copyright or other intellectual property rights. You understand and agree that the Services constitute proprietary information of WMC and may contain trade secret material compiled and owned by WMC. You will not provide any of the Services or any medium on which they are supplied or to which they may be copied to any person, including any person who is a competitor of WMC. In no event shall materials from the Services be stored in any information storage and retrieval system without the prior written consent of WMC. You agree not to upload or otherwise place any information on the Services that would infringe or otherwise violate anyone's intellectual property interests or other rights, or that is false, misleading, defamatory, or otherwise contrary to law or regulation. You warrant that you are in no way acting as agent or representative of any undisclosed principal. You represent and warrant that you are eighteen years of age or older.
Your Ownership of Data: You or Your licensors, are and will be the sole and exclusive owner of all Data, and will be responsible for the legality, accuracy, and completeness of such Data, and for the protection of the security and integrity thereof. You hereby grant to WMC, its Affiliates, suppliers, licensors, and contractors a non-exclusive, irrevocable, royalty-free, fully paid up, world-wide, transferable, perpetual license to use, create derivative works of, adapt, display, perform, distribute, copy, sublicense on multiple levels, and otherwise exploit, in whole or in part, the Data: (a) to provide the applicable services, including a RISQ Score, for so long as WMC maintains such Data; (b) to disclose RISQ Scores (and any updates thereto) to any Carriers or other Persons, including the CTIA, to whom WMC has a business relationship, and as permitted or required by applicable Law, including the Fair Credit Reporting Act; or (c) so long as the Data is de-identified so that it cannot reasonably be identified from the mere inspection or analysis of such information, for any other legally permissible purpose, including research, statistical analyses, models, benchmarking, and other analyses. For clarity, WMC does not intend to directly share Data with Carriers for the sole purpose of the Carriers competing with You for Your primary business.
RISQ Score: As applicable, WMC grants to You a limited, non-exclusive license to use the applicable RISQ Scores for the Permitted Use in accordance with these Terms of Use and provided You do not provide any such RISQ Score to competitors of WMC.
5) CONFIDENTIAL INFORMATION
Use: In the performance of the Services, Recipient may receive
Confidential Information from Discloser. Discloser or its licensors own all
right, title, and interest in and to its Confidential Information. Recipient
will: (a) take commercially reasonable steps to protect Discloser's
Confidential Information, provided that these steps must be at least as
protective as those Recipient takes to protect its own Confidential Information
of similar nature, but, in any event, no less than a reasonable standard of
care; (b) take commercially reasonable steps to not disclose, publish, or
communicate Discloser's Confidential Information to any third party, other than
as expressly permitted in this Agreement; and (c) use and disclose Discloser's
Confidential Information only to perform Recipient's obligations under these
Terms of Use or enforce Recipient's rights pursuant to these Terms of Use.
Permitted
Disclosure: Recipient's disclosure of
Confidential Information pursuant to applicable Law, a valid subpoena, or other
valid administrative or judicial process or regulatory investigation is not and
will not be a breach of Recipient's obligations, provided
that Recipient will provide prior notice to Discloser of such
disclosure, if and to the extent permitted by Law. Recipient may disclose the
Discloser's Confidential Information to its employees, contractors, agents, and
advisors who: (a) have a need to know it for purposes contemplated by these
Terms of Use, and (b) are legally bound to protect the Confidential Information
on terms no less protective than the terms of this Agreement. You will be fully
and solely responsible for the acts or omission of Persons to whom You disclose
Confidential Information. As applicable, You will
advise Message Sender of the confidential nature of the Services and RISQ
Score, and Message Sender will be party to confidentiality obligations with You
that protect WMC's Confidential Information in a manner consistent with Your
obligations under these Terms of Use.
Return/Destruction. Upon request, or upon termination of Your use of the
Services, Recipient will destroy (and certify to Discloser as to such
destruction) or deliver to Discloser all Confidential Information of Discloser.
6) PAYMENT TERMS
As applicable, you agree to pay WMC all Fees at the time of requesting the service by credit card or ACH transaction, as set forth on the website by which You access the Services. If WMC agrees to invoice You, then You will pay WMC within five (5) days of the date of an applicable invoice. An invoice is "disputed" only if You notify WMC of a good faith dispute within five days of receipt of invoice. All payment obligations are non-cancellable, and all amounts paid are nonrefundable. Any Fees not received as set forth in this paragraph will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. You will indemnify WMC for all costs, including expenses and attorneys' fees, incurred by WMC in the collection of overdue payments. Fees are exclusive of all taxes, duties, tariffs, VAT, and similar fees now in force, or enacted in the future, imposed on the transaction, for all of which You will be responsible (except for taxes based on WMC's net income). Should the payment of any Fees be subject to withholding tax, You will reimburse WMC for such withholding tax, and provide proof of payment. You will reimburse WMC for any deficiency relating to taxes, and other charges that are Your responsibility and any costs or expenses incurred by WMC therefrom.
7) ACCURACY AND WARRANTY DISCLAIMERS
WMC does not make any representation as to, warrant, or guarantee the accuracy, quality, completeness, currency, or validity of any information on or linked from the Services (including, without limitation, any Software, content, or RISQ Score). WMC may, at its sole discretion, opt to alter any information it receives. WMC is not responsible for any actions taken as a result of information provided on the Services, including any damages of any kind incurred as a result of such information. Due to, among other things, the possibility of human and/or mechanical error, WMC shall not be responsible for any errors or omissions on the Services.
THE SERVICES, INCLUDING ANY SOFTWARE, RISQ SCORE, OR THIRD-PARTY MATERIALS PROVIDED BY OR THROUGH WMC, ARE PROVIDED "AS-IS" AND "WITH ALL FAULTS," WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OR REPRESENTATION THAT THE SERVICES ARE BUG-FREE OR ERROR-FREE, WILL OPERATE WITHOUT ANY INTERRUPTION, OR PRODUCE ANY PARTICULAR RESULTS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WMC DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY OTHER WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE, OR TRADE. WMC MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD-PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD PARTY'S SOFTWARE, INFORMATION, AND/OR EQUIPMENT.
8) LIMITATIONS OF LIABILITY
TO THE FULL EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL WMC (INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, LICENSORS, CONTRACTORS, AND ASSIGNS (THE "RELEASED PARTIES")) HAVE LIABILITY FOR ANY TYPE OF PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS, LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT GOODS, LOST TECHNOLOGY, LOST RIGHTS, LOST SERVICES, LOST INFORMATION OR DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT) ARISING IN CONNECTION WITH THESE TERMS OF USE, THE SERVICES, ANY DATABASE OR CONTENT THEREON, OR THE USE OR INABILITY TO USE THE SERVICES, OR ANY DATABASE OR CONTENT THEREON, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES ARE CLAIMED OR REGARDLESS OF WHETHER WMC HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOT ALL STATE LAWS ALLOW SUCH LIMITATIONS, AND YOUR RIGHTS MAY VARY.
Fee-Based Services: Notwithstanding anything to the contrary, to the maximum extent permitted by applicable Law, the Released Parties' total liability for all claims in any manner arising in connection with these Terms of Use and the Services (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise, whether arising from contractual or extra-contractual liability) shall be the payment of direct damages which shall not exceed, in the aggregate, the amounts paid under to WMC during the one-month period prior to the most recent event giving rise to such liability. You and WMC acknowledge that WMC has set its prices in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between You and WMC. Y agree that the limitation and exclusions of liability and disclaimers specified in these Terms of Use will survive and apply even if found to have failed of their essential purpose.
9) INDEMNITY
You agree to indemnify, defend, and hold harmless WMC, its affiliates, and their respective officers, directors, employees, agents, successors, assigns, licensors, partners, joint venturers, customers and any other person or entity involved in the creation, production, and/or distribution of the Services, from and against any and all claims, liabilities, costs and expenses (including, without limitation, attorneys' fees and expenses) incurred in connection with, arising from, or related to: (a) Your use of the Services, including a RISQ Score; (b) any breach by You of these Terms of Use; (c) Your violation of applicable Law; (d) as applicable, actual or alleged infringement or misappropriation of any intellectual property right or privacy right relating to Data; (e) as applicable, Your failure to obtain Consent necessary for WMC to provide the Services or utilize Data; or (f) as applicable, WMC's use of the Data.
10) ENDORSEMENT DISCLAIMER
Unless otherwise specifically indicated, WMC does not endorse and has no affiliation with any of organizations mentioned, listed in, described on, or linked to via the Services, and it makes no representations or warranties whatsoever with regard to those organizations or any other organization, entity, or person.
11) DISCLAIMER REGARDING FINANCIAL AND LEGAL
ADVICE
The information on the Services is provided for educational and informational purposes only. Such information or materials do not constitute and are not intended to provide legal, accounting, or tax advice and should not be relied on in that respect. We suggest that You consult an attorney, accountant, and/or financial advisor to answer any financial or legal questions.
12) ADS DISCLAIMER
WMC reserves the right to edit, categorize, revise, or refuse any advertisement. In addition, WMC has the right to terminate any ad at any time for any reason. Parties posting ads are responsible for the accuracy and content of their ads. WMC will not be liable for any damages arising out of errors or omissions. WMC and its affiliates make no representations or warranties of any kind, whether express or implied, regarding any of the ads located on the Services. Due diligence is recommended before entering into any agreement with an advertiser. WMC will not be held liable for any damages of any kind relating to any ad.
13) DISCLAIMER REGARDING INFORMATION SENT TO THE
WMC WEB SITE
You are solely responsible for the information, documents, and other content you submit to the Services or WMC. You are advised to block any signatures, social security numbers, personal addresses, and any other personally identifiable information ("PII") from information that you submit. WMC reserves the right to refuse any information. In addition, WMC has the right to terminate any information at any time for any reason. WMC and its affiliates make no representations or warranties of any kind, whether express or implied, regarding any of the information on the Services. WMC will not be held liable for any damages.
If you submit information to us or post information or materials to the Services (collectively, the "Submitted Information"), you are giving the Submitted Information to WMC free of charge, and the Submitted Information will be treated as non-confidential and non-proprietary and may be used by WMC for any purpose subject to our privacy policies.
You grant WMC a royalty-free, perpetual, irrevocable, and fully sublicensable right to use such Submitted Information throughout the world in any media for any purpose. You further grant WMC and our sublicensees the right to use the name that you submit with the Submitted Information. You waive any rights you may have in modifications or alterations to your Submitted Information. In addition, you hereby waive all moral rights you may have in the Submitted Information. You are solely responsible for any material you submit to us. You represent and warrant that you own or otherwise have rights to use the Submitted Information; that the same is accurate; and that use of the Submitted Information will not cause injury to any person or entity.
14) TERMINATION AND SUSPENSION; EQUITABLE REMEDIES
Suspension: Without limiting WMC's termination rights, WMC may, in its sole discretion, suspend the provision of the Services and access to Software if it makes a determination that (a) access to or use of the Services, is detrimental to WMC, the Services, the Software, other customers, or suspension is necessitated by WMC's suppliers, contractors, or licensors; (b) as applicable, You does not pay any required Fees when due; (c) WMC is required by Law to do so; (d) You breach or are reasonably suspected of breaching these Terms of Use; or (e) it is necessary to perform maintenance services or emergency services. In such a case, WMC will reasonably endeavor to notify You. Immediately upon receipt of any such notice, You will cease use of the Services and, as applicable, Your Credentials that are subject to the suspension. Suspension does not relieve You of your payment obligations, and You are still responsible for all Fees.
Termination (General): WMC may terminate these Terms of Use (including Your rights hereunder) at any time, with or without notice and with or without cause. Terms of these Terms of Use that, by their nature, survive the termination or expiration of these Terms of Use, shall so survive.
Termination (RISQ Score): WMC may terminate these Terms of Use and your use of the applicable Services, including RISQ Score, immediately upon written notice to You (a) if You breach these Terms of Use and fail to cure such breach within 30 days of written notice describing such breach; (b) if You become the subject of a voluntary or involuntary petition in bankruptcy, or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing; (c) if such termination is necessitated by a cancellation or suspension of any access, licenses, rights granted to WMC by its suppliers, licensors, or contractors; or (d) for convenience on 90 days' notice.
Procedure upon Termination: Upon the effective date of termination, WMC will cease providing the Services to You, You will cease using the Services, and all payment obligations of You through the effective date of termination will immediately become due. As applicable, (1) WMC has no obligation to destroy, retain, hold, export, or return the Data; and (2) WMC will have no liability for retention or deletion of Data in compliance with this Agreement.
Equitable Remedies: You acknowledge and agree that any unauthorized use or disclosure by You of the Services or any infringement or violation of WMC's intellectual property rights, shall cause WMC irreparable injury for which WMC could not be fully compensated by money damages. You agree that, in the event of such a violation, WMC would be entitled to seek and recover (in addition to any other available remedies) preliminary and permanent injunctive relief without the necessity of posting bond or security, and further that WMC would be entitled to recover from You its attorneys' fees and costs incurred in seeking and obtaining such relief.
15) FORCE MAJEURE
WMC shall have no liability whatever for delays or interruptions in delivery or accessibility of any of the Services, interruptions of service or other breach of these Terms of Use due to fire, explosion, lightning, power surge or failure, water, acts of God, war, civil disturbance, terrorism, acts or omissions of communications carriers, or other causes beyond WMC's reasonable control.
16) DISPUTE RESOLUTION
Governing Law; Venue: These Terms of Use, and all obligations of You and WMC hereunder, shall be governed and construed by the laws of the State of New York, without regard to its choice of law or conflict of law rules. You agree that, any legal or equitable action or proceeding arising from or related to these Terms of Use or the Services shall be commenced and maintained exclusively in a federal or state court located in New York County. You and WMC consent to personal jurisdiction and venue in any such court and hereby waive any objections or defense to jurisdiction or venue in any such proceeding before such court. You and WMC expressly exclude from this Agreement the application of the United Nations Convention on Contracts for the International Sale of Goods, including any domestic laws that implement such UN Convention, and any implementation of the Uniform Computer Information Transactions Act.
Recovery of Legal Fees and Costs: In the event of any dispute adjudicated between the parties, whether in litigation or permitted appeal, the prevailing party shall be entitled, in addition to such other relief as may be granted, to recover from the party not prevailing its reasonable attorneys' fees and costs incurred in such proceeding.
Limitation on Actions: The parties agree that neither may bring a claim or assert a cause of action against the other, in any forum or manner, more than one (1) year after the cause of action accrued, except where the party could not have reasonably discovered the wrong giving rise to the claim within the basic facts supporting the claim within one (1) year.
17) MODIFICATION OF THESE TERMS OF USE
WMC reserves the right, in its sole discretion, to modify, alter, or otherwise revise these Terms of Use (as well as any other agreements and legal notice) at any time by posting such modified versions on the Services or otherwise amending such agreements in accordance with the terms thereto. You agree to monitor regularly these Terms of Use as they appear on the Services. Your continued use of the Services after the posting of any modified versions shall constitute agreement to these Terms of Use. These Terms of Use may be modified by Your agreement to any other agreement. These Terms of Use may not otherwise be modified or amended.
18) ASSIGNMENT; NO THIRD-PARTY BENEFICIARY
Assignment: You may not assign your obligations hereunder to any Person,
in whole or in part, without the prior written consent of WMC, in WMC's sole
discretion, and any attempt to do so will be deemed void and/or a breach of these
Terms of Use. Notwithstanding anything to the contrary, WMC may use third-party
suppliers, licensors, or contractors to perform the Services without Your
consent and WMC may provide all or a portion of the Services or Software from
or through use of its Affiliates without Your consent.
No Third-Party Beneficiary: Your use of the Services does not create, and You and WMC expressly
disclaim, any third-party beneficiary relationships. For clarity, as
applicable, Message Senders are not, and will not be, a third-party
beneficiary, and have no, and will have no, rights under these Terms of Use.
19) NOTICES
Any notice or communication required or permitted in these Terms of Use will be in writing, and will be deemed to have been duly given (a) on the day of delivery if hand-delivered, or if sent by a nationally recognized express courier service; or (b) four (4) days after mailing if mailed by first class mail, registered or certified, postage prepaid, and addressed as specified. All notices to WMC must be given by postal mail sent to WMC's headquarters as then listed on the www.wmcglobal.com. Any notices to You will be sent to the e-mail address that You provide to WMC.
20) SEVERABILITY
Should any term of these Terms of Use be finally held by a court of competent jurisdiction to be invalid, unenforceable, void, or otherwise contrary to law or equity, WMC and You agree that such provision shall be automatically severed and the remainder of these Terms of Use that can be given effect shall continue to be given effect.
21) INTERPRETATION
Subject to the following, these Terms of Use constitute the entire agreement between WMC and You with respect to the subject matter of these Terms of Use, and supersede all prior agreements, understandings, or representations between You and WMC with respect to the subject matter of these Terms of Use. These Terms of Use do not supersede or alter any applicable User Agreement and/or License Agreement, and You must comply with the terms of these Terms of Use and each such other agreement to which You have agreed or may agree in the future. In the event of a conflict between these Terms of Use and any such other agreement to which you have agreed or in the future agree, the terms of such other agreement shall control. These Terms of Use may not be modified except in writing and as is permitted herein.
The headings used herein are for
purposes of convenience only and should not be used in construing the
provisions hereof. Failure of You or WMC to enforce or exercise, at any time or
for any period, any term of these Terms of Use does not constitute, and will
not be construed as, a waiver of such term, and will not affect the right to
enforce such term, or any other term contained herein, at a
later date.
22) INDEPENDENT
CONTRACTORS
You
and WMC are, and will be, independent contractors; neither you nor WMC will
have any right, power, or authority to act or create any obligation, express or
implied, on behalf of the other.
23) MARKETING
WMC
may disclose that You are a client of WMC, including in press releases and
other marketing materials or client credentials.
24) U.S. FEDERAL GOVERNMENT USE
If the Services can be construed as "commercial computer software," as described in DFAR 252.227-7014(a)(1), then, if access is acquired by, or on behalf of, a civilian agency, the U.S. Federal Government acquires this access to commercial computer software, and/or commercial computer software documentation, subject to the terms of these Terms of Use, and as specified in 48 C.F.R. §§ 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations and its successors. If access is acquired by, or on behalf of, any agency within the Department of Defense, the U.S. Federal Government acquires this access to commercial computer software, and/or commercial computer software documentation, subject to the terms of these Terms of Use, as specified in 48 C.F.R. § 227.7202 of the Department of Defense Federal Acquisition Regulations Supplement and its successors.
25) PRIVACY POLICY
You agree to the terms of the WMC Global Privacy Policy (www.wmcglobal.com/privacy-policy), which is incorporated by reference. These Terms of Use include any separate agreements or written consents relating to privacy notices and/or notices posted on particular pages of the Services that may provide more detail regarding the personal information we collect on those pages, why we need that information, and the choices you may have about the ways we use that information. If you sign up to use a special feature of the Services, you may be asked to expressly consent to special terms, for example, by checking a box or clicking on a button marked, "I agree." This separate agreement will supplement or amend these Terms of Use, but only with respect to the matters governed by such separate agreement.
You agree that your use of the Services or submission of any personal information to WMC will constitute your consent to the transfer of your personal information outside of your home country. Please do not provide information to us, either directly or indirectly, if you do not accept these Terms of Use or You are in a country or location where these Terms of Use violate local laws or regulations, or the use of our services is not permitted.