This Data Access Agreement (this “Agreement”) is a legal agreement between WTO Holdings, Inc. (“WTO”) and the subscriber (“Subscriber”) accessible from the account registration and sign in page of WTO’s website (“Sign In Page”). Please read this Agreement carefully, because by manifesting assent to this Agreement, Subscriber agrees to be bound by the terms of this Agreement. The person executing this Agreement on behalf of Subscriber represents that he or she is an authorized representative of Subscriber capable of binding Subscriber to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber and WTO hereby agree as follows:
1. SUBSCRIPTION; OBLIGATIONS; RESTRICTIONS ON USE; OWNERSHIP.
1.1 Subscription. WTO has collected and aggregated certain data regarding dining establishments, bars, and other companies, as well as anonymized data regarding consumers (collectively, the “Insight Data”). Subject to the terms and conditions of this Agreement, WTO hereby grants to Subscriber a limited, non-exclusive, non-transferable, revocable right to download, access, and use the Insight Data: (i) in connection with Subscriber’s internal business purposes; and (ii) in connection with services Subscriber provides to its clients and customers. Subscriber will primarily access, and may download, the Insight Data through a dedicated dashboard on WTO’s website (the “Insight Monitor”). However, WTO may also, from time to time, provide the Insight Data to Subscriber via email or other means. In the event WTO elects to provide the Insight Data to Subscriber via an API feed, Subscriber shall be required to acknowledge and accept the terms and conditions governing such API feed.
1.2 Subscriber Obligations. In connection with its use of the Insight Data, Subscriber shall: (i) comply with all applicable national, international, federal, state, and local laws, rules, and regulations and self-regulatory guidelines, including, without limitation, laws relating to privacy and unfair business practices; and (ii) not permit any person outside their organization to access the Insight Monitor using Subscriber’s login credentials without the express permission of WTO.
1.3 Restrictions on Use of the Insight Data. Subscriber shall not (and shall not authorize or knowingly permit any third party to) make any use or disclosure of the Insight Data that is not expressly permitted under this Agreement. Without limiting the foregoing, Subscriber shall not (and shall not authorize or knowingly permit any third party to): (i) publish or distribute the Insight Data, in whole or in part, except for Insight Data that pertains specifically to one or more businesses owned or operated by Subscriber; or (ii) resell or sublicense the Insight Data.
1.4 Ownership. WTO owns and shall own all rights, title, and interest in and to the Insight Data. Subscriber has no rights with respect to the Insight Data other than those expressly granted hereunder.
2. TERM AND TERMINATION.
2.1 Terms. This Agreement shall be effective from the earlier of (i) the date Subscriber accepts this agreement and (ii) the date that Subscriber first has access to the Insight Monitor or comes into possession of any Insight Data (the “Effective Date”), and shall remain effective until the later of (i) the end of the subscription period initially selected by by Subscriber (the “Initial Term”), and any subsequent renewals (the “Renewal Terms”, and together with the Initial Term, the “Term”) on the Sign In Page, and (ii) the last date the Subscriber has access to the Insight Monitor or the Insight Data. Upon expiration of the Initial Term or any Renewal Term, this Agreement shall automatically renew for successive periods of the same length as the Initial Term, unless either party provides written notice to the other party of non-renewal at least five (5) days prior to the expiration of the then-current Term.
2.2 Termination For Breach. In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving fourteen (14) days prior, written notice to the breaching party; provided, however, that this Agreement shall not terminate if the breaching party has cured the breach before the expiration of such fourteen (14) day period. In addition, in the event Subscriber fails to pay any Fees (as defined below) in full when due, WTO may, at any time and without notice, suspend Subscriber’s access to the Insight Data.
2.3 Effect of Termination. Upon termination of this Agreement: (i) Subscriber shall pay WTO for all amounts payable hereunder as of the effective date of termination if WTO is the party terminating the Agreement pursuant to Section 2.2; (ii) WTO shall refund Subscriber a pro-rata portion of any pre-paid Fees if Subscriber is the party terminating this Agreement pursuant to Section 2.2; and (iii) all rights granted hereunder to Subscriber shall immediately cease, and Subscriber shall immediately cease all access to the Insight Data; provided, however, that Subscriber may retain any Insight Data downloaded prior to the effective of termination and use such Insight Data in accordance with the terms of this Agreement.
2.4 Survival. The following provisions shall survive termination of this Agreement: Section 1.3 (“Restrictions on Use of the Insight Data”), Section 1.4 (“Ownership”), Section 2.3 (“Effect of Termination”), Section 3 (“Financial Terms”) (until all Fees and taxes due and payable hereunder are paid), Section 4 (“Disclaimer”), Section 5 (“Limitation of Liability”), Section 6 (“Indemnification”), Section 7 (“Miscellaneous Provisions”), and this Section 2.4 (“Survival”).
3. FINANCIAL TERMS.
3.1 Fees. As consideration for the rights granted hereunder, Subscriber shall pay WTO the fee agreed between Subscriber and WTO (the “Fees”). Subject to Section 2.3(ii), all Fees are non-refundable. WTO reserves the right to change the Fees for any Renewal Term on at least thirty (30) days’ notice prior to the commencement of such Renewal Term.
3.2 Payment Terms. Subscriber shall pay all agreed Fees in advance via credit card on the Sign In Page. Access to the Insight Data shall not be provided until full payment of the agreed Fees has been received by WTO, after which access to the Insight Data is usually initiated within two (2) hours. All amounts stated in this Agreement are in U.S. dollars, and all payments shall be made in U.S. dollars.
3.3 Taxes. The Fees do not include applicable transaction taxes. If WTO is required by law to pay any federal, state, county, local, or value added tax, sales and use tax, goods and services tax, or similar applicable taxes based on this Agreement, WTO shall ensure that such taxes are charged to Subscriber in accordance with applicable rules so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Nothing in this Agreement, however, shall require Subscriber to pay any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits, or income tax of WTO.
4. DISCLAIMER.
SUBSCRIBER ACKNOWLEDGES THAT ALTHOUGH THE INSIGHT DATA CAN BE USED AS AN AID TO SUBSCRIBER TO MAKE INFORMED BUSINESS DECISIONS, IT IS NOT MEANT TO SUBSTITUTE LEGAL OR BUSINESS ADVICE OR SUBSCRIBER’S EXERCISE OF ITS OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT SUBSCRIBER’S SOLE DISCRETION AND ELECTION. IF THE INSIGHT DATA INCLUDE ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, WTO MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS. THE INSIGHT DATA IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND WTO MAKES NO WARRANTY WITH RESPECT TO IT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT WTO MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
5. LIMITATION OF LIABILITY.
IN NO EVENT SHALL WTO BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER WTO WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. WTO’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
6. INDEMNIFICATION.
Subscriber shall indemnify, defend, and hold harmless WTO and its officers, directors, employees, attorneys, agents, licensors (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) incurred by such Indemnified Parties in connection with any third-party claim to the extent arising from Subscriber’s use of the Insight Data, except to the extent arising from WTO’s breach of this Agreement or WTO’s tortious acts or omissions.
7. MISCELLANEOUS PROVISIONS.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either party, except with the other party’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of law provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Borough of Manhattan, New York City, New York. The parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the Insight Data and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. For the avoidance of doubt, nothing in WTO’s Terms of Use shall apply to WTO’s provision of the Insight Data hereunder or Subscriber’s use of the same. Any modification to this Agreement must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.