DATA LICENSE TERMS AND CONDITIONS
All pages copyright ©2012 Wysk®. All rights reserved.
By clicking on the “I agree to the Terms & Conditions” checkbox during checkout, you agree that both you and the business on behalf of which you are licensing the Wysk data through this website (collectively “You”) shall be bound by and shall strictly comply with all of the following Data License Terms and Conditions and that Documented Transactions, Inc. dba Wysk (“Wysk” or “We”) shall be the beneficiary of such agreement and shall be entitled to enforce these terms:
The following capitalized terms shall have the meaning ascribed thereto in this Agreement:
“Agreement” shall mean these Data License Terms and Conditions.
“Business Credit Reports” shall mean Wysk’s proprietary reports comprised of credit profile data and Wysk’s associated proprietary third party database integration, analysis, and scoring.
“Claim” shall mean any third party claim, damage, loss, liability, cost or expense, including reasonable attorney’s fees.
“Confidential Information” shall mean all information, materials and Wysk Data that Wysk discloses to You in the performance of this Agreement and the performance of the Services.
“Wysk Data” shall mean any information or data provided to You pursuant to any of the Services.
“Wysk Property” shall mean the Website, the Wysk Data and any technologies, methods, processes, know-how, techniques and any other Intellectual Property Rights used, originated or developed in connection with the Services, this Agreement.
“Fees” shall mean the fees for the Services.
“Indemnify” shall mean to indemnify, defend and hold harmless a Party and its officers, directors, and employees from and against any and all third party claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees).
“Intellectual Property Rights” shall mean any and all copyrights, patents, trademarks, trade secrets, and any other intellectual property rights recognized under applicable law associated with or relating to Wysk’s proprietary data, software, materials, technologies, processes, and methodologies, and any all extensions, modifications and enhancements thereto, and derivative works thereof.
“License Term” shall mean the duration of your permitted use of Wysk Data, which shall be deemed to be for a one time use unless otherwise set forth in your Order for the applicable Services.
“List” shall mean Wysk Data that Wysk compiles based upon your designated selection criteria.
“Monitoring Services” shall mean Wysk services to monitor and provide updates to the Business Credit Report of a designated entity.
“Order” shall mean your order for Services at the Website.
“Report Services” shall mean Wysk licensing Business Credit Reports to You at the Website pursuant to the terms of this Agreement.
“Services” shall mean the Business Credit Reports, Report Services and/or Monitoring Services that Wysk provides to You pursuant and subject to the terms of this Agreement.
"Security Breach" shall mean any actual, potential or threatened unauthorized access to or use of any Wysk Data.
“Website” or “Wysk Site” shall mean the Wysk Internet website located at http://www.wyskcredit.com and all related or linked web pages.
2. Services and Fees
Wysk shall provide You with the Services for which You submit an Order at the Website in accordance with this Agreement and the descriptions set forth at the Website applicable to such Services. Wysk may decline to fulfill any Order with or without notice to You and may terminate your right to use any of the Services or Wysk Data upon notice to You in writing or by electronic mail. Upon receipt of such notice, You shall immediately cease any use of the Wysk Data.
2.2 Monitoring Service Alerts
An email containing an alert will be sent to You when there are specific changes to the information in the credit file of the company for which You are receiving Monitoring Services.
You shall pay the Fees for the Services in accordance with the payment terms and methods set forth at the Website.
2.4 Monitoring Service Fee Terms
The following terms and conditions shall apply to the Monitoring Services:
(a) your subscription for any Monitoring Report is effective for the period covered by your subscription plan and continues upon your payment of the respective subscription fee. Subscription fees for your plan will automatically be charged, at the then current rate, to the credit card or other billing source authorized by You, until You cancel your subscription. If You sign-up for multiple subscription plans, You will be billed separately for each plan.
(b) For annual subscription plans, You may cancel the Monitoring Services for a prorated refund with such proration based upon the number of months already used with a minimum fee equal to three months charges under the current monthly subscription plan by submitting a request in the “Customer Dashboard” section at the Website. A notification will be emailed to You at least one week prior to the end of your annual term during which You will have the ability to cancel the Monitoring Services and automatic renewal of your subscription for an additional annual term. Unless cancelled by You prior to the expiration of the annual term, your subscription will be automatically renewed for an additional annual term and the applicable annual charge will be billed to the credit card or other billing source authorized by You. Wysk will give You 30 days notice by email of the pricing for the renewal term if such pricing has been changed from your previous Order. Pricing for the renewal term will be at the then current pricing for the annual subscription plan. Monthly subscription plans may be cancelled at any time by submitting a request in the “Customer Dashboard” section at the Website. Unless cancelled by You, the applicable monthly charge will be billed automatically to the credit card or other billing source authorized by You. Prices for monthly subscription plans are subject to change upon 30 days notice by email.
3. Wysk Data Use and Restrictions
3.1 Wysk Data License
The Wysk Site includes general information on registering business entities under different State laws and the exchange of legal registration and other data. Services also include a review of your answers for completeness, spelling and grammar, and for internal consistency of names, addresses and the like. At no time does Wysk review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. Wysk and its Services are no substitute for the advice of an attorney, accountant, or a financial professional.
Wysk strives to keep its legal databases and registration methodology accurate, current and up-to-date. However, because the law and technology change rapidly, Wysk cannot guarantee that all of the information or methodology on the Wysk Site is completely current or that Wysk’s methodology for registration of different businesses complies with a specific jurisdiction’s legal framework. The law is different from jurisdiction to jurisdiction, and may be subject to interpretation by different courts. The law is a personal matter, and no general information or legal tool like the kind Wysk provides can fit every circumstance. Furthermore, the legal information contained on the Wysk Site is not legal advice and is not guaranteed to be correct, complete or up-to-date. Therefore, if You need legal advice for your specific problem, or if your specific problem is too complex to be addressed by Wysk’s Services, You should consult a licensed attorney in your area. The Wysk Site is not intended to create any attorney-client relationship, and your use of Wysk does not and will not create an attorney-client relationship between You and Wysk.
Wysk hereby grants to You a limited, nonexclusive, and nontransferable license to use the Wysk Data during the License Term in the United States for your internal use in strict accordance with this Agreement. You shall destroy the Wysk Data within ten (10) days following the expiration or termination of the License Term. In the event that You fail to comply with the foregoing, Wysk may charge You additional Fees for your continued use of the Wysk Data at Wysk’s then-standard rates, in addition to exercising any other remedies Wysk may have at law or in equity.
3.2 Wysk Data Terms
The following terms and conditions apply to your use of any of the Wysk Data:
(a) You shall not (i) resell, license, or otherwise provide or disclose Wysk Data to any third party; (ii) copy or otherwise reproduce any Wysk Data, except as necessary for backup or security purposes; (iii) attempt to discover or reverse engineer any confidential and proprietary criteria developed or used by Wysk in the compilation of the Wysk Data or the performance of the Services; (iv) merge or incorporate the Wysk Data with any third party file without Wysk’s prior written consent; (v) use Wysk Data to enhance any third party file or list, or develop, publish or maintain any list, enhancement, directory, or other similar product; (iv) use Wysk Data in any marketing communication that refers to selection criteria or presumed knowledge about the recipient; (vii) use any of the Wysk Data to support investment decision making; (viii) use any of the Wysk Data as a substitute for traditional risk management services; (ix) upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (x) use the Website to impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (xi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Website; (xii) use the Website for any commercial purpose or the benefit of any third party or any manner not permitted by the licenses granted herein; (xiii) use the Website for fraudulent purposes; (xiv) attempt to decompile, reverse engineer, disassemble or hack the Website, or to defeat or overcome any encryption technology or security measures implemented by Wysk with respect to the Website, or any of the Wysk Data and/or data transmitted, processed or stored by Wysk; (xv) harvest or collect any information about or regarding other users without authorization, including, but not limited to any personal data or information; (xvi) upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (xvii) upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party; (xviii) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (xix) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xx) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Website are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges; (xxi) interfere with or disrupt the Website or servers or networks connected to or operated with the Website, or disobey any requirements, procedures, policies or regulations of networks connected to or operated with the Website; (xxii) use the Website to intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law; (xxiii) use the Website to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or (xxiv) use the Website to collect or store personal data about other users in connection with the prohibited conduct and activities set forth above.
(b) You shall use all Wysk Data in strict accordance with: (i) all applicable federal, state and local laws, regulations, rules, and judicial and administrative decisions; (ii) relevant industry guidelines; and (iii) your own privacy policies.
(c) You acknowledge that Wysk Data has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC Section 1681a. You shall not use any Wysk Data as a factor in establishing any consumer’s eligibility for (i) credit or insurance used primarily for personal, family or household purposes, (ii) employment purposes, or (iii) other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681b or any similar statute.
(d) You will maintain reasonable security procedures and practices appropriate to the nature of the information to protect the Wysk Data from unauthorized access, destruction, use, modification or disclosure. You shall provide Wysk immediate written notice upon discovery or notification of any Security Breach and immediately and at your own expense investigate and take all steps to identify, prevent and mitigate the effects of any Security Breach. You shall promptly provide to Wysk a detailed description of the incident, the Wysk Data accessed, the identity of affected consumers, and such other information as Wysk may request concerning the Security Breach and conduct any recovery necessary to remediate the impact and bear any cost or loss Wysk may incur as a result of a Security Breach, including any cost associated with Wysk notifying any effected consumers.
(e) Upon reasonable notice to You, Wysk may withdraw or decline to provide to You any Wysk Data or Services to comply with any requirements imposed by any applicable federal, state, or local law, rule or regulation, judicial or administrative decision, or industry self-regulatory guideline or in the event your use of the Wysk Data or Services is the subject to a substantial, adverse and documented consumer reaction related to consumer privacy issues.
3.3 Business Credit Report Use and Restrictions
The following terms and conditions shall apply to your use of the Business Credit Reports:
(a) You agree that your use of any Business Credit Report: -will be solely in connection with a present or prospective credit or financial transaction with the business entity inquired upon, or for other legitimate commercial purposes, for internal use only and will not be resold; -will not be a factor in establishing an individual's eligibility for credit or insurance or used for personal, family or household purposes, or employment purposes; -will be in compliance with all special use restrictions set forth in the Agreement or hereafter adopted by Wysk; -will be maintained in confidence and disclosed only to persons whose duties reasonably relate to the business purposes for which the information was requested; and
(b) You acknowledge that the Business Credit Reports You receive from Wysk under this Agreement include non-public information about businesses and, as such, You shall maintain the information in strict confidence and will not disclose such information other than to its employees who have a need to know, or pursuant to legal requirements.
(c) You may access a Business Credit Report for three (3) months following the date of payment.
4.1 General Warranty
Wysk warrants to You that: (i) Wysk shall use commercially reasonable efforts to provide the Services in a timely manner and in accordance with applicable Services descriptions set forth in your Order; and (ii) the Wysk Data will be as complete, accurate, and current as such data can be in view of Wysk’s customary method of compilation or acquisition of such data and the nature and accuracy of Wysk’s sources for such data.
4.2 Warranty Disclaimer
Because the Services may involve conveying information provided to Wysk by other sources, Wysk cannot and will not, for the fee charged for the Services, be an insurer or guarantor of the accuracy or reliability of the Services or the data contained in its various databases. THE WARRANTIES SET FORTH IN SECTION 4.1 ARE THE ONLY WARRANTIES WYSK HAS GIVEN YOU WITH RESPECT TO THE SERVICES OR THE WYSK DATA. WYSK MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY WYSK DATA, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY WYSK HEREUNDER, AND WYSK HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF ANY DATA OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
You shall indemnify, defend and hold harmless Wysk and its officers, directors, and employees from and against any and all Claims to the extent arising as a result of any (i) breach of the terms of this Agreement; (ii) Security Breach; and (iii) violation by You of any applicable federal, state and local laws, regulations, rules, or judicial or administrative decision or order in your use of the Wysk Data or the Services.
A Party seeking indemnification for a Claim pursuant to this Agreement (“Indemnified Party”) shall provide written notice detailing the circumstances of the Claim to the Party responsible for indemnifying against the Claim (“Indemnifying Party”) promptly following the discovery of such Claim by the Indemnified Party. Failure to timely provide such notice shall not diminish the Indemnifying Party’s indemnification obligation except to the extent the Indemnifying Party’s ability to defend such Claim is materially prejudiced by such failure or delay. The Indemnified Party shall provide the Indemnifying Party with such information and cooperation as the Indemnifying Party may reasonably request.
6. Limitation of Liability
You acknowledge that Wysk maintains several databases compiled from multiple sources updated on a periodic basis, and that Wysk does not undertake a separate investigation for each inquiry or request for Services or Wysk Data made by You. You also acknowledge that the Fees are based upon Wysk’s expectation that the risk of any loss or injury that may be incurred by use of the Services and Wysk Data will be borne by You and not Wysk. If You reasonably determine that the Services or the Wysk Data do not meet Wysk’s obligations under this Agreement, You shall so notify Wysk in writing within ten days following their receipt. your failure to so notify Wysk shall mean that You accept the Services and Wysk Data. If You so notify Wysk within ten days after receipt of the Services, then, unless Wysk reasonably disputes your claim, Wysk shall, at its option, either reperform the applicable Services or issue You a credit for the amount You paid to Wysk for the nonconforming Services or Wysk Data. THE WEBSITE, WYSK DATA AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE’ AND WYSK WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES BASED ON ANY ERRORS OR OMISSIONS WITH RESPECT THERETO. WYSK’S REPERFORMANCE OF THE SERVICES OR THE REFUND OF ANY FEES SHALL CONSTITUTE YOUR SOLE REMEDY AND WYSK’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON WYSK, THEN YOU AGREE THAT WYSK’S TOTAL LIABILITY FOR ANY OR ALL OF YOUR LOSSES OR INJURIES FROM WYSK’S ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE FEES PAID BY YOU HEREUNDER FOR THE SERVICES THAT ARE THE SUBJECT OF THE ALLEGED BREACH. YOU COVENANT THAT YOU WILL NOT SUE WYSK FOR ANY AMOUNT GREATER THAN AS SET FORTH IN THIS SECTION 6.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL WYSK BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF WYSK IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
7.1 Use of Website
No part of the Website may be reproduced, modified, or distributed in any form or manner without the prior written permission of Wysk. Elements of the Website are protected by trade dress, trademark, unfair competition, and other laws and may not be copied in whole or in part. No logo, graphic, or image from this Web site may be copied or retransmitted without Wysk's express written permission. Further, You may not use any circumvention tools, meta tags or any other “hidden text” utilizing Wysk’s name, trademark, URL, or product name without Wysk’s prior written consent. your Log-In ID and Password for the Website are confidential and You agree that You will not share them with, or disclose them to, any third party. Wysk may use your Log-In ID and Password to monitor your use of the Services. You agree that You will not, and will not permit third parties to, access the Wysk Data and the Services using Internet bots or other automated or electronic inquiries or methods.
The Wysk Data and Services available on this Website may include technical inaccuracies or typographical errors. Wysk has the right to change, modify or add to the terms and conditions governing this Website or any part thereof, the information, or Services offered through this Website. Such changes, modifications, additions or deletions shall be effective immediately upon notice to You, which may be given by any means including posting on this Website or by other electronic or conventional means. You agree to review this page periodically to be aware of such changes, modifications, additions or deletions. your continued use of the Website after such notice has been given shall be deemed to constitute your acceptance of the changes, modifications, additions or deletions. If any information You provide is untrue, inaccurate or not current, or if Wysk has reasonable grounds to suspect that such information is untrue, inaccurate or not current, Wysk, at its sole discretion, has the right to suspend or terminate your use of any Service and refuse all current or future access to the Website and use of the Services or suspend or terminate any portion thereof. Further, You agree that Wysk will not be liable to You or any third party if Wysk suspends or terminates your access to the content or products for any reason.
7.3 Governing Law
This Agreement shall be deemed to have been perfomed in and shall be governed by the internal laws of the State of Texas without regards to its conflicts of law principles. The Parties agree that the venue for adjudication of any dispute under this Agreement shall be in the federal or state courts in Harris County, Texas.
Wysk and the Wysk products referenced in this site are either trademarks, service marks or registered trademarks of Documented Transactions, Inc. or its affiliates. Other products and company names mentioned herein may be the trademarks of their respective owners. No use of any Wysk trademark may be made by any third party without express written consent of Wysk. Wysk shall own and retain exclusively all right, title and interest in and to any Wysk Property. You acknowledge that Wysk has expended substantial time, effort and funds to create and deliver the Services and compile its various databases and that all data in Wysk’s databases and any other intellectual property that are used or developed in connection with the Services are and will continue to be Wysk’s exclusive property. Nothing contained in this Agreement shall be deemed to convey to You or to any other party any ownership interest in or to intellectual property or data used or provided in connection with the Services.
This Agreement may not be assigned, transferred, shared or divided in whole or in part by You without Wysk’s prior written consent.
Wysk may waive compliance by You with any covenants or conditions contained in this Agreement, but only by written instrument signed by an authorized representative of Wysk. No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
7.7 Records and Audit
You shall maintain complete, detailed, and accurate records (in accordance with standard accounting practices) of your use of the Services and the Wysk Data for one (1) year after the License Term. Wysk may once per annum, upon reasonable notice to You and during regular business hours, inspect, audit, and/or copy any records that directly relate to the foregoing.
In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, void, illegal, or unenforceable by any court, arbitrator, or governmental agency, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, void, illegal, or unenforceable provision(s) shall survive to the extent not so held. To the extent reasonably possible and practicable, the invalid, void, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable valid, legal, and enforceable provision(s) which best reflects the Parties' intentions underlying the replaced invalid, void, illegal, or unenforceable provision(s).
Agreement Sections 3, 5, 6 and 7 shall survive any termination or expiration of this Agreement or the applicable License Term, and shall continue in full force and effect.
7.10 Complete Agreement
This Agreement, as supplemented by the Order, sets forth the complete understanding of Wysk and You with respect to the subject matter hereof and supersedes all prior agreements, communications or representations, whether oral or written, made by any representative of either party relating hereto.
Updated March 1st, 2012
All pages copyright ©2012 Wysk. All rights reserved.