Data License Terms and Conditions
The following terms will apply to any data subscription:
1. SUMMARY
The Parties enter into this Agreement (including its exhibits) to specify the terms on which WHT licenses to Client use of the WHT Service and WHT Data.
2. DEFINITIONS
Capitalized terms in this Agreement have the meaning stated in Exhibit A or elsewhere in this Agreement.
3. ORDER FORMS
Client may purchase various WHT services (including access to the WHT Data) under this Agreement in accordance with one or more Order Forms mutually executed by the Parties.
4. LICENSE FROM WHT
4.1 License to Use WHT Service and WHT Data. Subject to the terms and conditions of this Agreement and the applicable Order Form(s), WHT hereby grants to Client a limited, worldwide, nonexclusive, non-transferable, royalty-free right and license (without the right to sublicense), during the applicable Order Form Term(s), to access the WHT Service and to receive and use the WHT Data, as such are made available to Client by WHT, to, display, perform, modify and distribute the WHT Data solely in connection with the Permitted Uses identified in the applicable Order Form(s).
The WHT Data is licensed, not sold, to Client.
Client shall only access WHT Data via the WHT website during the term of this Agreement, may not cache the WHT Data and may not store any WHT Data beyond the termination of this Agreement.
4.2 Trademarks. The license granted to Client under this Section 4 includes the right to display and use the WHT trademark and logos listed in WHT’s Trademark Usage Guidelines (the “WHT Marks”) solely for purposes of (i) exercising the rights granted above in this Section 4, and (ii) identifying WHT as the source of the WHT Data, and solely in accordance with WHT’s Trademark Usage Guidelines located at [add url] (which WHT may update from time to time in accordance with this Agreement). All goodwill generated through Client use of the WHT Marks will inure solely to the benefit of WHT.
4.3 Ownership of Products. To the extent that the Permitted Uses identified in an applicable Order Form allow Client to develop, create, and/or distribute a Product that is based on, incorporates or utilizes, wholly or in part, WHT Data and/or any all derivatives thereof, Client shall have and retain title and ownership in and to the Product and any and all Intellectual Property Rights associate therewith, with the exclusion of any portion of the WHT Service or WHT Data.
4.4 Ownership of WHT Service and WHT Data. Customer acknowledges and agrees the WHT Data is a valuable property right of WHT including, but not limited to copyright, trade secret, and other Intellectual Property Rights. WHT retains all title, ownership, and, except for the limited license granted pursuant to this Section 4, other rights in and to the WHT Service and the WHT Data, including, without limitation, any and all Intellectual Property Rights associated with the WHT Service and the WHT Data, including the WHT Marks, or that form the basis upon which the WHT Service operates. Except for the limited license contemplated by this Section 4 or as expressly stated in the applicable Order Form(s), no license or rights in or to the WHT Service, the WHT Data or any Intellectual Property Rights associated therewith (including, without limitation, any materials or deliverables provided by WHT under this Agreement or any Order Form) are granted, assigned, licensed or conveyed to Client, by implication, estoppel, operation of law or otherwise.
5. CLIENT RESPONSIBILITIES
5.1 Use. Client is responsible for all activities that occur in connection with use of the WHT Service by Client and Client’s end users, including the security of any passwords. Client must ensure that it and its end users comply with the terms of this Agreement, the applicable Order Form(s) and the Terms of Service on WHT’s website as updated from time to time. Without limiting the foregoing, Client must use the WHT Data and the WHT Service only for lawful purposes and in compliance with applicable laws. Client shall keep WHT fully informed of, and shall act to expeditiously resolve any complaint by a governmental body or third party regarding use of WHT Data.
5.2 No Reverse Engineering. Client and its end users must not: (i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the WHT Service or any part thereof, unless expressly permitted or required by applicable law without the possibility of contractual waiver or WHT specifically approves it in writing; or (ii) attempt to disable or circumvent any security mechanisms used by the WHT Service.
5.3 Usage. Client must not engage in any activity or use that interferes with or disrupts or unreasonably burdens the WHT Service or (or the servers and networks through which any is provided).
5.4 Usage Limitations. Client must not exceed the usage limitations specified on the applicable Order Form(s) without paying to WHT the applicable overage charges within fifteen (15) days after asked to do so by WHT. WHT reserves the right to enforce those usage limits in its sole discretion, which may result in WHT notifying Client and its end users of the breach and/or terminating some or all aspects of the Parties’ relationship.
6. DATA, PRIVACY & SECURITY
6.1 Client Data. As between Client and WHT, Client will retain sole and exclusive ownership of all Client Data. Client allows WHT, during the Term, to use and make available the Client Data for the purposes of fulfilling WHT’s obligations under this Agreement.
6.2 Privacy Notice. WHT will use Client Data and data provided by Client end users consistent with WHT’s privacy notice at https://www.washingtonhometown.com/privacy-policy/ (the “Privacy Notice”).
6.3 Security. WHT will operate the WHT Service and provide any other services under this Agreement in accordance with WHT’s then-current security policies and practices, which will take precedence over any comparable or conflicting terms in the Agreement, any Order Form, any Client purchase order or any other terms or documents not signed by both Parties.
7. SUPPORT & OTHER SERVICES
7.1 Support. Subject to the terms and conditions of this Agreement and the applicable Order Form(s), WHT will provide Support Services in accordance with (and as defined in) the applicable Order Form(s).
7.2 Professional Services. Subject to the terms and conditions of this Agreement, WHT will provide training and/or consulting services (and potentially other professional services) in accordance with the applicable Order Form(s) entered into by the Parties under this Agreement.
8. FEES & PAYMENT
8.1 Fees. In consideration for WHT providing the WHT Data and the WHT Service and other services under this Agreement and the applicable Order Form(s), Client will pay WHT the fees set forth in this Agreement and the applicable Order Form(s) (collectively, the “Fees”). All Fees are non-refundable.
8.2 Payment Terms. Unless otherwise set forth in an Order Form, Client will pay to WHT (by wire transfer or other method mutually acceptable to the Parties) all Fees within twenty-one (21) days of the applicable invoice. Late payment of Fees may be subject to interest on the past due amount at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. Print maps require a 50% deposit before services are provided. The remainder of the fee will be billed once client has approved the final project with payment due fourteen (14) days after the invoice date.
8.3 Taxes. All Fees are exclusive of, and Client will pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Fees or the use or provision of the WHT Service or any other service under this Agreement, excluding only taxes based on WHT’s net income (for which WHT will be responsible).
9. TERM & TERMINATION
9.1 Agreement Term. The “Term” of this Agreement will commence on the Effective Date and will continue until this Agreement expires or is terminated in accordance with Section 9.2.
9.2 Termination By Either Party. Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement (or any individual Order Form):
a. if the other Party materially fails to perform or observe any term or condition in this Agreement (or the relevant Order Form) and fails to cure such material breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party;
b. if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding is not dismissed or stayed within sixty (60) days after such filing; or
c. if all Order Forms under this Agreement have expired or been terminated in accordance with this Agreement.
9.3 Non-Competition. WHT may suspend Client's access to the WHT Service and WHT Data without advanced notice if, in the reasonable and good faith opinion of WHT, Client or its end users threaten to jeopardize WHT's ability to provide WHT Data to Client or others by reverse engineering WHT Data or making copies of WHT Data in order to create a competing data set or Product for resale or public distribution. WHT may immediately suspend Client's access to the WHT Service and WHT Data and terminate this Agreement if WHT determines Client is offering Products, derivatives or other products or services that compete with WHT or the WHT Service.
9.4 Effect of Termination. The following provisions of this Agreement will survive termination of this Agreement for any reason: Sections 2, 5, 6, and 9.4; and Exhibit A. All other rights and obligations of the Parties under this Agreement, including all licenses granted to Client herein, will expire and terminate upon the termination of this Agreement. Client also must not retain any copies of any WHT Data after any termination of this Agreement or continue to provide end users access to Products containing WHT Data. Client agrees that if Client continues to call any WHT APIs after the termination effective date, WHT has the right to bill Client for every week of post-termination usage, based on the applicable prorated weekly fees.
10. DISCLAIMER OF WARRANTIES
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT CLIENT USE OF THE WHT SERVICE AND WHT DATA IS AT CLIENT’S SOLE RISK, AND THAT THE WHT SERVICE AND WHT DATA ARE PROVIDED "AS IS" AND "AS AVAILABLE." The WHT data should be used with caution and should not be taken as an authoritative description of land boundaries or other uses. WHT utilizes data and information from outside public sources and has no way to verify the accuracy of said data.
ANY AND ALL INFORMATION, MATERIALS, SERVICES, INTELLECTUAL PROPERTY AND OTHER PROPERTY AND RIGHTS GRANTED AND/OR PROVIDED BY WHT PURSUANT TO THIS AGREEMENT, INCLUDING THE WHT DATA, ARE GRANTED AND/OR PROVIDED ON AN "AS IS" BASIS. WHT AND ITS SUBSIDIARIES, AFFILIATES AND LICENSORS MAKE NO EXPRESS WARRANTIES, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE WHT SERVICE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT UNINTERRUPTED SERVICE, OR ERROR-FREE SERVICE, OR THE SEQUENCE, TIMELINESS, ACCURACY OR COMPLETENESS OF INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WHT, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT (A) THE WHT DATA OR CLIENT’S USE OF THE WHT SERVICE WILL MEET CLIENT’S REQUIREMENTS, OR (B) CLIENT’S USE OF THE WHT SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
11. CONFIDENTIALITY & PUBLICITY
11.1 Confidentiality.
a. The Parties each acknowledge that the other Party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective Party, regardless of whether they may be copyrighted, patented or trademarked.
b. During the Term, each Party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data ("Confidential Information"). Each Party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving Party treats its own confidential information. Each Party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving Party hereunder, (ii) was already rightfully in the possession of the receiving Party when received by the disclosing Party, (iii) was developed independently by the receiving Party by individuals without access to the disclosing Party's information, or (iv) the knowledge of the existence of this Agreement between the parties.
c. The obligations of the Parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for two years thereafter.
11.2 Feedback. Notwithstanding anything to the contrary in this Agreement, if Client provides WHT with any comments, recommendations, suggestions or other feedback regarding the modification, correction, improvement or enhancement of the WHT Data, WHT Service, other WHT software, technology, services, methodologies or deliverables, or any other aspect of WHT’s business (collectively, “Feedback”), then: (a) WHT has no confidentiality obligations with respect to such Feedback even if it is designated as confidential; (b) Client acknowledges and agrees that WHT will own and may freely use and exploit such Feedback without limitation on a perpetual and irrevocable basis for any purpose without any further obligation to Client; and (c) if any Intellectual Property Rights arise from or relate to such Feedback, the Parties agree WHT will exclusively own all such Intellectual Property Rights, and Client hereby assigns and agrees to assign all such Intellectual Property Rights to WHT.
11.3 Publicity. WHT may include Client in WHT’s customer lists, and Client will participate in WHT’s reference program (e.g., by cooperating to prepare a standard profile of Client, including Client’s logo and an executive quote, that WHT will be permitted to use for marketing purposes).
12. INDEMNIFICATION.
a. Each Party will indemnify, defend and hold harmless the other Party, its parent, subsidiaries, and affiliates, and each of their respective officers, directors, members, employees, contractors, agents, representatives, successors and assigns, from and against any and all judgments, liabilities, losses, damages, costs or expenses, including all reasonable legal and expert fees and expenses and all costs of investigation (collectively, "Losses"), in connection with any claim, complaint, lawsuit, demand, cause of action, or proceeding brought by a third party ("Claim") alleging a breach of its representations, warranties, or obligations hereunder. Client further agrees to indemnify, defend, and hold WHT harmless from and against any Losses in connection with any Claim relating to a Product developed, created, or distributed by Client.
b. A Party seeking indemnification (an "Indemnified Party") will give prompt written notice of any applicable Claim to the Party from whom indemnification is sought (the "Indemnifying Party"); provided, however, that failure to give such notice will not relieve Indemnifying Party of any liability hereunder (except to the extent Indemnifying Party has suffered actual prejudice by such failure). The Indemnified Party shall provide reasonable assistance to defend or settle an applicable Claim at Indemnifying Party's expense. The parties agree that Indemnifying Party shall have primary control of the defense and settlement of such Claim provided that Indemnified Party shall have the right to participate in the defense and settlement negotiations of such Claim through its own counsel at its own expense, and provided further that Indemnifying Party shall not agree to any settlement or compromise that imposes any obligation or liability on Indemnified Party without such party's prior written consent.
Notwithstanding anything to the contrary in this Agreement, WHT will have no obligation under this Section 12 or otherwise to the extent the lawsuit, action, costs or damages are attributable to a Client Product or the Client Indemnitees’ violation of applicable law, or to the Client Indemnitees’ breach of this Agreement or an Order Form.
The Parties’ obligations under Section 12 are the Parties’ entire respective liability and sole and exclusive remedies for infringement or misappropriation actions and third party liability of any kind relating to this Agreement, and are conditioned upon the Indemnified Party: (a) providing the indemnifying Party with prompt written notice of the lawsuit or action (though any failure to give notice will only affect the Indemnifying Party’s obligations to the extent such failure materially impaired the Indemnifying Party’s ability to effectively defend or settle the lawsuit or action); (b) giving the Indemnifying Party sole control of the defense of the lawsuit or action and any related settlement negotiations (though the Indemnified Party may participate in the defense and settlement at their own expense, and the Indemnifying Party may not enter into any settlement that adversely affects the Indemnified Party’s interests to a material degree without their written consent); and (c) providing to the Indemnifying Party (at the Indemnifying Party’s expense) all assistance, information and authority reasonably required to effectively defend or settle the lawsuit or action.
13. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS UNDER SECTION 12 OF THIS AGREEMENT OR A BREACH OF THE CONFIDENTIALITY AGREEMENT, In no event will EITHER PARTY BE LIABLE TO THE OTHER PARTY in connection with, OR RELATING TO, thIS agreement for ANY INDIRECT, INCIDENTAL, RELIANCE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, loss of use, LOSS OR CORRUPTION OF DATA, loss of goodwill and damage to reputation).
IN NO EVENT WILL WHT’S TOTAL aggregate LIABILITY TO CLIENT (for direct, CONSEQUENTIAL OR ANY OTHER TYPE OF damages OR THEORY OF LIABILITY) ARISING UNDER OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT actually PAID by Client under this agreement IN THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE RELEVANT CAUSE OF ACTION ACCRUED. THIS LIMIT IS CUMULATIVE AND NOT PER INCIDENT (i.e., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT INCREASE THE LIMIT).
14. SUBCONTRACTORS
WHT may use subcontractors to provide the WHT Service and any other services under this Agreement. WHT will be responsible for the acts and omissions of its subcontractors to the same extent it is responsible for its own employees under this Agreement. WHT will require its subcontractors to comply with requirements of this Agreement related to the services performed by such subcontractors (including, without limitation, all data use, data security and privacy requirements).
15. MISCELLANEOUS
15.1 Notices. Client agrees that WHT may provide Client with notices by email, regular mail, or postings on the WHT Web site or WHT Service. By providing Client’s email address to WHT, Client consents to WHT using the email address to send Client any notices required by law in lieu of communication by postal mail. Unless otherwise specified by a Party, any notice or other communication given under this Agreement shall be addressed to the signatories of WHT and Client under this Agreement.
15.2 Governing Law. This Agreement is governed by the laws of the State of Washington and the United States, without regard to any conflicts-of-laws provisions or rules. The exclusive jurisdiction and venue for any legal proceedings or actions arising out of or relating to this Agreement will be the Washington state and U.S. federal courts located in Kittitas County, Washington, and both Parties hereby submit to the personal jurisdiction of those courts and irrevocably waive any objection they may have to such venue. If the Parties litigate any issue relating to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness fees and costs of appeal).
15.3 Injunctive Relief. The Parties acknowledge and agree that any breach or threatened breach of this Agreement may cause harm for which money damages may not provide an adequate remedy. Accordingly, the Parties agree that in the event of a breach or threatened breach of this Agreement, in addition to any other available remedies, each Party may seek temporary and permanent injunctive relief without the need to post any bond or other security that otherwise may be required under applicable law.
15.4 Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. The Parties may not assign, delegate or transfer any of their rights or obligations under this Agreement, by operation of law or otherwise, without gaining prior written consent from the other Party. Notwithstanding the foregoing, however, either Party may assign this Agreement without consent (a) to the acquiring or surviving entity in a merger or acquisition in which the assigning Party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock), or (b) to the purchaser of all or substantially all of the assigning Party’s assets. There are no third-party beneficiaries of this Agreement.
15.5 Waiver. A waiver of any right under this Agreement will in no way waive any other rights, or the same right with respect to any similar future incident. No waiver, alteration, modification or amendment of this Agreement will be effective unless in writing and signed by both Parties. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable or invalid, then to the maximum extent permitted by law, that provision will be modified and interpreted to accomplish the objectives of such provision, or severed, and the remaining provisions will remain in full force and effect. Each Party has had a reasonable opportunity to participate in the drafting of this Agreement, and to consult its own counsel with respect to that drafting; accordingly, no ambiguity in this Agreement will be construed against either Party by virtue of such Party’s role in drafting this Agreement.
15.6 Counterparts. This Agreement may be signed in duplicate originals and via a facsimile, scanned, pdf, or other electronic version, and in separate counterparts, which are effective as if the Parties signed a single original.
15.7 Entire Agreement. This Agreement and the Confidentiality Agreement constitute the entire agreement between the Parties regarding this subject matter, and supersede all prior agreements, representations and understandings, oral or written, between the Parties regarding this subject matter. This Agreement may not be amended, modified or supplemented except by a written amendment signed by an authorized representative of each Party.
15.8 No Joint Venture. Nothing in this Agreement creates any agency, partnership, joint venture, franchise or other special legal relationship between the Parties.
15.9 Order of Precedence. All Order Forms entered into between the Parties constitute part of the Parties’ agreement regarding this subject matter. In the event of any conflict between this Agreement and any Order Form entered into between the Parties, the Order Form will take precedence and prevail. In the event of any conflict between this Agreement or any Order Form, on the one hand, and the Terms of Service on WHT’s Web site, on the other hand, the Agreement and Order Form(s) will take precedence and prevail.
15.11 Force Majeure. Except for payment obligations, neither Party will be liable under the Agreement by reason of any failure or delay in the performance of its obligations under the Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such Party.