Wilmington Trust Connect Authorized User Agreement
is entered into between Authorized User (as such term
is defined below) and WT (as such term is defined below) and governs Authorized
User's use of the On-Line Service (as such term is defined below).
- Definitions
Capitalized terms have the following
definitions throughout this
Agreement, and other capitalized terms have the meanings otherwise assigned to
them in this Agreement:
"Authorized User" means any person
that (i) has registered for
access to Online Information (as such term is defined below) for Public
Transactions, and/or (ii) has registered and been approved by WT to access
Online Information for Private Transaction(s) (as such term is defined below).
"Authorized User Credentials" means
one or more identification
credentials (e.g., user I.D., passwords) and other authentication factors that
WT may require, from time to time, in order to access the On-Line Service.
"Authorized User Information" means
information that an
Authorized User submits and/or verifies to WT through the On-Line Service in
order to, among other things, use the On-Line Service.
"Business Day" means Monday
through Friday, excluding U.S.
federal holidays. Reference to time shall be to Eastern Time.
"On-Line Information" means data or
information in connection
with a Transaction, such as servicer reports, distribution reports, loan tapes
or special notices.
"On-Line Service" means all services
provided by WT through the
electronic portal known as "Wilmington Trust Connect" that is accessible by an
Authorized User through the Website, as that portal may be expanded or modified
from time to time. The On-Line Service includes, without limitation, the
ability of Authorized User to (i) access, complete and/or submit Authorized
User Information to WT through the portal, (ii) view servicer reports, distribution
reports, loan tapes or special notices, and (iii) otherwise communicate with WT
through the portal. The On-Line Service also includes any software
provided by WT (or its vendor) to Authorized User for use in connection with
the On-Line Service.
"Private Transaction" means an asset
backed securitization or
similar transaction in respect of which WT provides trustee or other services
and the information for which is available only to investors and/or other deal
parties that have received approval from WT to access On-Line Information for
such transaction.
"Public Transaction" means an asset
backed securitization or
similar transaction in respect of which WT provides trustee or other services
and the information for which is generally available to the public at large.
"Transaction" means a Public
Transaction and/or a Private
Transaction, as the context may require.
"Website" means the current or future
Internet website, and all
related pages, where an Authorized User goes in order to obtain access to the
On-Line Service.
"WT" means Wilmington Trust, N.A. or
any affiliate that holds an
Authorized User"s Authorized User Credentials to access the On-Line
Service.
"WT System" means the system that WT
uses for tracking and
accounting for Authorized User access in the On-Line Service.
Any reference to a "person" includes a
natural person, corporation,
partnership, organization, governmental agency or other entity. The
singular includes the plural, and vice versa.
- This Agreement
IMPORTANT NOTE: BEFORE USING THE ON-LINE SERVICE, AUTHORIZED USER SHOULD CAREFULLY
READ THE TERMS AND CONDITIONS IN THIS AGREEMENT. AUTHORIZED USER"S USE OF THE
ON-LINE SERVICE CONSTITUTES AUTHORIZED USER"S AGREEMENT TO ALL TERMS AND
CONDITIONS HEREIN.
- This Agreement
describes the terms and conditions on which WT allows access and use of
the On-Line Service. By accessing the On-Line Service, Authorized User
hereby agrees to the terms and conditions in this Agreement. If Authorized
User does not so agree, Authorized User must not use the On-Line Service.
- Authorized User hereby
authorizes WT to rely upon any "check", "submit", "agree", "click" (or
similar function) in the Website or through the On-Line Service to
indicate Authorized User"s agreement or consent to this Agreement and/or
the submission of any Authorized User Information to WT through the
On-Line Service. WT may conclusively rely on any such Authorized User
Information submitted by Authorized User to WT through the On-Line
Service. Authorized User agrees that any information or statement
contained in the Authorized User Information submitted to WT through the
On-Line Service, is true and correct and may be conclusively relied upon
by WT, without further inquiry, as if Authorized User had otherwise provided
such Authorized User Information to WT under other written and signed
agreement or instruction.
- On-Line Service
- Authorized User
understands that the On-Line Service is intended only to be used by a
person that (i) has registered for access to On-line Information for
Public Transactions, and/or (ii) has registered and been approved by WT
for access to On-line Information for the applicable Private
Transaction(s).
- WT is entitled to rely
solely on the Authorized User Information provided to WT by such Authorized
User. Any Authorized User Information made available or provided to WT by
an Authorized User may be relied upon by WT, as if provided to WT directly
by such Authorized User.
- Any decision by WT to
approve any person to access the On-Line Service with respect to any
Private Transaction(s) will be made by WT in accordance with the terms of
the applicable underlying Transaction documentation.
- If WT wishes to
approve any person to obtain access to the On-Line Service with respect to
any Private Transaction(s), WT will require such person to provide certain
information to WT prior to such approval.
- Authorized User
represents and warrants to WT that s/he is the person to whom such email
or correspondence referred to in Section 3(d) immediately above was expressly
directed. If not, Authorized User must not use the On-Line Service, must
immediately notify WT in writing of such, and must not submit Authorized
User Information to WT through the On-Line Service.
- Once Authorized User
accesses the On-Line Service, Authorized User can use the On-Line Service
subject to, and as permitted, from time to time, by the On-Line Service.
- Authorized User agrees
that, to the extent any Authorized User information is pre-populated on
the Website or as part of the On-Line Service, that Authorized User will
carefully review such information prior to submission to WT and, upon
submission, represents and warrants that such information is true and
correct and may be relied upon by WT, without further inquiry, as if the
Authorized User had otherwise provided such information to WT under any
other written and signed agreement, consent or instruction.
- Authorized User agrees
that any Authorized User Information submitted to WT through the On-Line
Service, is true and correct and may be relied upon by WT, without further
inquiry, as if Authorized User had otherwise provided the Authorized User
Information to WT under any other written and signed agreement, consent or
instruction.
- Once Authorized User
submits any Authorized User Information to WT through the On-Line Service,
WT is entitled to act upon it and Authorized User understands that
Authorized User may not be able to cancel or change the Authorized User
Information. If Authorized User requests cancellation or amendment, if WT
has not already acted upon or processed the Authorized User Information,
WT may assist Authorized User to attempt to so cancel or amend, however,
WT has no duty to do so and shall not be liable for any failure to so
cancel or amend or any Loss (as defined below) in respect thereof.
- Authorized User
understands and agrees that nothing in this Agreement, or in connection
with the On-Line Service, shall:
(i) constitute the opening of an
account at WT for
Authorized User. No account is opened at WT in connection with this
Agreement or in connection with Authorized User using the On-Line
Service.
(ii) create any contractual or other
relationship between WT and
Authorized User, except as expressly set forth in this Agreement for the
provision of the On-Line Service;
(iii) impose on WT any obligation or duty to
act on any Authorized User
Information within any specific time period, or at all; or
(v) impose on WT any other liability,
obligation or duty in
connection with a Transaction. WT"s only liabilities, obligations and
duties in connection with a Transaction are as expressly set forth in the
definitive written agreement entered into between WT
and the applicable party(ies) thereto.
- Authorized User
Credentials
- To gain access to the
On-Line Service, Authorized User will need Authorized User Credentials.
Authorized User will complete the online enrolment form to create the
applicable Authorized User Credentials. Authorized User can, after initial
sign-in, update certain of its Authorized User Credentials, from time to
time, as permitted by the On-Line Service.
- Authorized User agrees
to keep all Authorized User Credentials confidential to prevent
unauthorized access and use of the On-Line Service. Authorized User is
solely responsible for the administration, security and confidentiality of
its Authorized User Credentials. Authorized User also is solely
responsible for maintaining the security of its Authorized User Systems.
Authorized User agrees that use of Authorized User Credentials is a
reasonable security procedure to verify the identity and authenticity of
the person gaining access to the On-Line Services and the authenticity of
any Authorized User Information, provided to WT thereunder. Any
communication requesting access to the On-Line Services received by WT of
Authorized User Credentials, and all Authorized User Information and other
communications submitted through the On-Line Service after access using
the Authorized User Credentials, will be binding upon the Authorized User
as valid and authentic for all purposes, whether or not actually
authorized, without further verification of the identity or authority of
the person issuing the communication or gaining access to the On-Line
Service. WT may act on such communications and Authorized User agrees that
those electronic communications will be given the same legal effect as
written and signed paper communications.
- WT shall have no
liability for any Loss (as defined below) resulting from Authorized User"s
failure to implement security procedures, or any breach of security
procedures by Authorized User or other persons, and Authorized User shall
bear the entire Loss (as defined below) occasioned by or resulting from
any use of the On-Line Service initiated by using Authorized User
Credentials.
- WT reserves the right
to revoke, suspend or cancel any or all of Authorized User"s Authorized
User Credentials at any time for any security or other reason, including,
but not limited to, the failure by the Authorized User to access the
On-Line Service for a period of twelve (12) months or more, without prior
notice to Authorized User. If an Authorized User"s Authorized User
Credentials are revoked, suspended or cancelled such Authorized User shall
be required to contact the On-Line Service site administrator for further
information before regaining access to the On-Line Service.
- Authorized User must
notify WT immediately in the event Authorized User believes that (i) the
security or confidentiality of its Authorized User Credentials has been
compromised or (ii) there has been any unauthorized access to or use of
the On-Line Service or On-Line Information or any unauthorized instruction
purportedly on behalf of Authorized User. Authorized User agrees that it
will not submit any Authorized User Information or communication
purporting to be a person other than the relevant Authorized User, or
interrupt or attempt to interrupt the operation of the Website, the
On-Line Service or the WT System.
- Authorized User most
notify WT immediately in the event Authorized User is no longer (i) a
certificate holder, noteholder or other beneficial owner of certificates
or notes related to a Transaction, or (ii) a rating agency, data provider,
issuer or other deal party to a Transaction that requires or has otherwise
been approved to access On-Line Information for such Transaction.
- Authorized User Systems
- To access the On-Line
Service, Authorized User must have a computer or mobile device with access
to the Internet and software that is compatible with the Website and
allows Authorized User to browse the Internet through an Internet Service
Provider ("Authorized User Systems"). Authorized User must have
established Authorized User Credentials that Authorized User creates.
Authorized User is solely responsible, at its expense, for access to the
Internet and for the selection, operation and maintenance of the system,
equipment and other software that Authorized User uses in order to access
and use the Website and On-Line Service.
- WT is not responsible
for any Loss (as defined below) including any errors or failures that may
result, directly or indirectly, as a result of Authorized User"s use of
the On-Line Service from (i) any malfunction of Authorized User"s
equipment (including computer or mobile device) or software, or (ii) any
computer virus, worm, Trojan horse, spyware or other malware; or (iii) use
of any wireless Internet or mobile access. Subject to applicable law, WT
reserves the right to update, terminate, discontinue or change the
equipment (including mobile device capabilities) or software required or
necessary to access the On-Line Service. To protect the security of
Authorized User"s information, Authorized User agrees to log out of the
On-Line Service and close his/her browser or application session when
Authorized User is finished using the On-Line Service.
- WT may provide or make
available to Authorized User documentation, brochures, guides and
information in any format (including help screens, contextual help, FAQs,
instructions and tutorials) as amended from time to time, regarding the
On-Line Services and its use ("Guides"). Authorized User's use of
the On-Line Service is subject to the Guides. WT is not responsible for
any Loss (as defined below) arising from Authorized User's failure to
abide by the Guides or understand the terms of the Guides, including,
without limitation, understanding the deadlines or conditions for
processing instructions or the restrictions or conditions with regard to
information or data accessed via the On-Line Service. Terminology in the
Guides may differ from this Agreement or other documentation with respect
to the On-Line Service. In the event Authorized User has questions,
Authorized User should contact WT for clarification. To the extent of
inconsistency between the terms and conditions in the Guide and this
Agreement, this Agreement shall prevail.
- Limited License
- WT hereby grants to
Authorized User a limited, non-exclusive, non-transferable right to access
and use the On-Line Service. WT (or its licensors) own and hold all right,
title and interest in and to the On-Line Service. Authorized User acquires
only the limited right to use the On-Line Service granted pursuant to this
Section 6.
- Solely for the purpose
of (i) enabling WT to offer the On-Line Service (either directly or
through one or more of its vendors or subcontractors) and (ii) enabling WT
and its vendors or subcontractors to test, debug, modify, develop and
otherwise enhance the On-Line Service, Authorized User grants to WT and
each of its vendors and subcontractors engaged in providing or supporting
the On-Line Service, if any, a non-exclusive, royalty-free, worldwide
license during the time that the On-Line Service is provided, to use any
of Authorized User"s confidential or proprietary information that
Authorized User provides through the On-Line Service (or Authorized User
Credentials). WT will take, and will require each
such vendor and subcontractor to take, all steps and measures as required
under WT"s information security procedures to protect Authorized User"s
confidential information.
- Proprietary Rights in the Services
- The On-Line Service,
together with the On-Line Information, is the property and confidential
information of WT or its licensors or others that allow WT to distribute
their information ("Information Providers") and contains
confidential information that is protected by applicable intellectual
property laws.
- Except as (i)
expressly authorized herein, (ii) otherwise previously authorized by WT,
or (iii) in accordance with the terms of the applicable underlying
Transaction documentation, Authorized User may not reproduce, transmit,
sell, display, distribute, publish, broadcast, circulate, codify,
disseminate, or commercially exploit such On-Line Information or the
On-Line Service in any manner (including electronic, print or other media
now known or hereafter developed) without the written consent of WT.
Authorized User also agrees not to use On-Line Information or the On-Line
Service for any unlawful purpose, and Authorized User shall comply with
any reasonable request of WT or any Information Provider to protect their
respective rights in the On-Line Information or the On-Line Service.
- Links to Third Party
Sites
As a convenience to Authorized User, WT may
provide links to websites
operated by entities other than WT ("Linked Sites"). The Linked Sites
are not under the control of WT. If Authorized User uses a Linked Site,
Authorized User will leave the Website. If Authorized User decides to visit any
Linked Sites, Authorized User does so at its own risk
and it is Authorized User"s responsibility to take all protective measures to
guard against viruses or other destructive elements and understand the privacy
policies of the Linked Sites. WT makes no warranty or representation regarding,
and does not endorse, nor is responsible for, any Linked Site, the information
appearing thereon or any of the products or services described thereon. Linked
Sites may have a privacy policy different from that of WT and the Link Site may
provide less security than the Website. Links to Linked Sites do not imply that
WT sponsors, endorses, is affiliated or associated with, or is legally
authorized to use any trademark, trade name, logo or copyright symbol displayed
in or accessible through the links, or that any Linked Site is authorized to
use any trademark, trade name, logo, symbol or copyright of WT.
- Submissions to WT
WT will be able to utilize all Authorized
User Information and any other
information that Authorized User submits to WT through the On-Line
Service for any purpose consistent with its obligations under the terms
expressed herein. To the extent necessary, for the above-stated
purposes, Authorized User hereby grants a perpetual, worldwide, unlimited license
to WT to use the information Authorized User submits for such purposes.
- Internet and Email
Communications
- Authorized User
acknowledges that transmissions over the Internet are inherently insecure.
While WT takes reasonable precautions, due to the nature of the service, WT
cannot guarantee the privacy, security or authenticity of Authorized
User's communications within or through the On-Line Service or the
Website, and possible unintended results may occur, including delay,
access to or interception of data by unauthorized third parties,
tampering, and interruption, error in telecommunications media or damage
to Authorized User's System Accordingly, Authorized User must
assess whether the use of the On-Line Service or the Internet is
adequately secure to meet Authorized User's particular
needs, and Authorized User assumes all risk of disclosure and/or
other Loss (as defined below) resulting from such use.
- Authorized User agrees
that WT may, but is not required to, send to Authorized User via external
email (e.g., Authorized_User@gmail.com) certain messages or alerts, some
of which may contain personal information. Authorized User acknowledges
that there are risks associated with sending a notice to an email address,
including, because email (external) is not private or secure, unauthorized
access to the notice and information it contains.Please refer to our
Website Privacy
Notice for UK and EU users) and Internet
Privacy Notice (for non-UK or EU users) for more
information about how we use your personal information.
- It is Authorized
User"s responsibility to notify WT if Authorized User changes his/her
Authorized User Information, including, but not limited to, his/her email
(external) address (e.g., Authorized_User@gmail.com).
- View Information
Through the On-Line Service, Authorized User
can view On-Line
Information. Authorized User understands and agrees that the On-Line
Information is for reference purposes only. Authorized User understands and
agrees that there may be delays, omissions, inaccuracies and other errors with
respect to the On-Line Information, and Authorized User agrees that WT shall
not be liable for any Loss (as defined below) in connection with (i) the
(in)accuracy, (in)completeness, (un)timeliness, or (in)correct sequencing of
the On-Line Information, (ii) any decision made or action taken, or omitted, by
Authorized User or anyone else in reliance upon the On-Line Information, (iii)
interruption of any access to, or the unavailability of, the On-Line
Information, or (iv) the unavailability of any data or information,
including but not limited to the On-Line Information.
- Recording of Communication
WT is entitled to monitor and/or record any
communication, electronic or
verbal, between Authorized User and WT or WT's representatives or agents, to
the extent permitted by applicable law.
- Reporting
WT may report or make available any
Authorized User Information or any
other information provided by Authorized User as required by applicable law or
regulation, or to regulatory agencies, affiliates, vendors or other third
parties concerning any Authorized User, a Transaction or this Agreement as WT
reasonably believes is necessary or appropriate, in accordance with the Internet
Privacy Notice and Website Privacy Notice.
- Use for Illegal Activities Prohibited
Authorized User agrees not to use the Website
or On-Line Service:
- in violation or
attempted violation of any terms of this Agreement;
- in any manner that
could damage, disable, interrupt, overburden, or impair the Website or On-Line
Service, or interfere with any other party's use and enjoyment of the
Website or On-Line Service;
- for any illegal
activities or attempted illegal activities (Illegal activities include,
but are not limited to, tampering with information databases and software,
unauthorized entry to other networks or computers, trafficking in illegal
products or substances, disobeying trade restrictions, violating civil
rights laws, knowledgeable vandalism, destruction of online files,
transmitting any unlawful, infringing, harmful, inappropriate, or
otherwise objectionable material of any kind, that can cause harm or delay
to the Website, the On-Line Service, its users, WT, or computers of any
kind.);
- to misrepresent
Authorized User"s identity in any way;
- in any manner that
could violate or attempt to violate the security of the Website or On-Line
Service. Any such violations may result in criminal and/or civil penalties
against Authorized User. WT may investigate any suspected violation and,
if a criminal violation is suspected, WT will cooperate with law
enforcement agencies in their investigations);
- for any unsolicited
advertising, solicitation, or promotional activities;
- to reverse engineer,
disassemble or decompile any section or technology on the Website or On-Line
Service;
- to launch or use any
automated system, including without limitation "robots," "spiders" or
"offline readers," that access the Website or On-Line Service in a manner
that sends more request messages to our servers in a given period of time
than a human can reasonably produce in the same period by using a
conventional web browser; or
- to transmit chain
letters, unsolicited messages, "spamming" or "phishing" messages, or
messages marketing or advertising goods and services.
Authorized User shall comply with all
applicable laws, statutes,
ordinances and regulations regarding Authorized User"s use of the Website and
On-Line Service." In particular, if
Authorized User is acting under the authority of a controller or of a processor
and has access to personal data stored, hosted or transmitted via WT Connect,
the Authorized User shall not process those data except on instructions from
the controller, unless required to do so under applicable law. WT prohibits
caching, unauthorized hypertext links to the Website, and the framing of any
content. WT reserves the right to disable any unauthorized links or frames and
specifically disclaims any responsibility for the content available on any
other websites linked to the Website.
- Geographic Restraints
- The Website and
On-Line Service may contain software and/or other technology that is
subject to United States of America export controls and laws that regulate
the distribution of certain materials and services originating in the
United States. Authorized User agrees that it will comply with such export
controls.
- The Website and
On-Line Service is not intended for distribution to, or use by, any person
in any jurisdiction or country where such distribution or use would be in
violation of applicable law, including sanction-related laws of the U.S.,
contrary to local law or regulation, would subject WT to any liability or
would not give effect to all of the provisions in this Agreement.
Authorized User may not access or use the Website or On-Line Service where
such access or use is illegal or prohibited or where such access or use
would subject WT or its affiliates to any liability. For more information
about sanction-related laws of the U.S., please refer to the United States
Office of Foreign Assets Control (OFAC) Internet site and other United
States government sites pertaining to sanctions and trade restrictions.
- Warranties and Covenants of Authorized User/li>
Authorized User represents, warrants and
covenants that as of the date
hereof and on each subsequent day on which it uses the On-Line Service: (a)
Authorized User has the power and authority to enter into this Agreement; (b)
Authorized User shall comply with all applicable laws and regulations,
including without limitation, applicable privacy laws and regulations regarding
data collected or received by Authorized User (other than Authorized User"s own
data) in connection with the On-Line Service; (c) it has the right and
authority to submit Authorized User Information to WT as an Authorized User;
(d) Authorized User's use of the On-Line Service shall be in accordance with
its agreements in connection with a Transaction (whether any such agreement is
with WT or another party); and (e) Authorized User shall report any
unauthorized transaction or other instruction to WT by telephone as soon as
possible after learning of such unauthorized transaction and provide a written
report promptly.
- Privacy
The Internet Privacy Notice and Website
Privacy Notice, as updated from time to time in accordance with its terms,
applies to the use of the On-Line Service. By agreeing to this Agreement
and using the On-Line Service, Authorized User agrees to the terms of the Internet
Privacy Notice. Notwithstanding the terms of the Internet Privacy Notice, (i)
any Authorized User Information or any other information collected from any
Authorized User through the On-Line Service will be used by WT for the sole
purpose of providing the On-Line Service, and (ii) WT shall be entitled to
share such Authorized User Information or other information in accordance with
Section 13 above.
- Disclaimer of
Warranties
- WT will have no duties
or obligations to Authorized User in connection with the Website, the
On-Line Service, or this Agreement, other than as expressly set forth in
this Agreement.
- NOTHING IN THIS
AGREEMENT, THE WEBSITE, OR THE ON-LINE SERVICE IS INTENDED, NOR SHOULD BE
RELIED UPON, FOR PERSONAL, LEGAL, TAX OR FINANCIAL DECISIONS. AUTHORIZED
USER SHOULD CONSULT HIS/HER OWN APPROPRIATE PROFESSIONAL FOR ANY SUCH
ADVICE NEEDED.
- WT IS ONLY RESPONSIBLE
FOR PERFORMING THE ON-LINE SERVICES AS EXPRESSLY STATED IN THIS AGREEMENT.
THERE IS NO GUARANTEE THAT ACCESS TO THE ON-LINE SERVICE WILL BE AVAILABLE
AT ALL TIMES AND WT SHALL NOT BE LIABLE IF USER IS UNABLE TO ACCESS THE
ON-LINE SERVICE. THE ON-LINE SERVICE AND THE WEBSITE ARE PROVIDED BY WT
"AS IS" AND "AS AVAILABLE". EXCEPT AS PROHIBITED BY
LAW, WT MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE ON-LINE SERVICE OR THE WEBSITE, INCLUDING ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT
OF ANY PARTIES' PROPRIETARY RIGHTS.
WT SHALL NOT BE RESPONSIBLE FOR VERIFYING THE TRUTHFULNESS, ACCURACY OR
CORRECTNESS OF ANY INFORMATION THAT IS MADE AVAILABLE VIA WT CONNECT. WT
CONNECT HEREBY EXCLUDES LIABILITY TO THE
FULLEST EXTENT PERMITTED BY LAW (WHETHER ARISING UNDER CONTRACT, TORT INCLUDING
NEGLIGENCE, STATUTE OR OTHERWISE) IN CONNECTION WITH ANY ERRORS, OMISSIONS,
MISREPRESENTATIONS OR STATEMENTS IN ANY INFORMATION MADE AVAILABLE VIA WT
CONNECT.
- Force Majeure
In no event will WT be liable to Authorized
User for any Loss (as
defined below), default, or delay in performance arising out of or related to
this Agreement or the On-Line Services to the extent such Loss (as defined
below) or the default or delay is caused by circumstances beyond our control,
including civil disorders; wars; terrorism; lack of available resources from
persons other than parties to this Agreement; epidemic, pandemic or notifiable
diseases; labor disputes; electrical failures; denial
of service attack; postal delays or strikes; virus or other malware; fires;
floods; acts of God; federal, state or municipal actions, statutes, ordinances,
or regulations.
- Indemnity
Authorized User hereby releases and defends,
indemnifies, and holds
harmless WT and its directors, officers and employees from and against any and
all claims, suits, liabilities, losses, expenses or other costs of any nature,
including without limitation attorneys' fees and expenses, (whether under
contract, tort including negligence, statute or otherwise) (together, "Loss")
arising out of Authorized User"s breach of this Agreement, violation of
applicable law or regulation, use or misuse of the Website or On-Line Service,
or untrue or incorrect submission of any Authorized User Information or any
other information to WT through the On-Line service, including such violation
or misuses conducted by Authorized Use&39s employees, agents or other
representatives, if applicable. This Section shall survive termination of this
Agreement.
- Limitation on Liability
- To the maximum extent
permitted by applicable law, WT will not be liable for any Loss arising
out of or in connection with this Agreement, the Website or the On-Line Service,
except to the extent directly caused by WT's fraud or willful
misconduct. WT will not be liable in any way for the termination,
interruption or delay in the On-Line Service.
- TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO CASE SHALL WT, ITS OFFICERS, DIRECTORS,
EMPLOYEES, OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, USE, DATA, OR
GOODWILL, OR INTERRUPTION OF BUSINESS, (IN EACH CASE, WHETHER DIRECT OR
INDIRECT) NOR FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE
ON-LINE SERVICE OR THE WEBSITE, AUTHORIZED USER"S RELIANCE ON, USE OF OR
INABILITY TO USE THE WEBSITE OR ON-LINE SERVICE OR ANY ERROR, OMISSION,
INTERRUPTION OR DELAY IN OPERATION, OR ANY COMPUTER VIRUS OS SYSTEM
FAILURE, REGARDLESS OF WHETHER SUCH CLAIM ARISES UNDER ANY THEORY OF TORT
INCLUDING NEGLIGENCE, CONTRACT, BREACH OF STATUTORY DUTY OR OTHERWISE AND
REGARDLESS OF WHETHER WT OR OTHERS ARE ADVISED OF THE POSSIBILITY OF ANY
SUCH DAMAGES.
- Except to the extent
otherwise provided under the terms of this Agreement or applicable law,
Authorized User agrees and acknowledges that: (i) Authorized User is
personally responsible for its conduct while using, and Authorized User"s
use of, the On-Line Service, as well as for the conduct of, and use of
On-Line Service by, anyone Authorized User authorizes to use the On-Line
Service or to whom Authorized User gives access to its Authorized User
Credentials; and (ii) Authorized User agrees to defend, indemnify and hold
WT, its directors, officers, employees and agents harmless from all Loss
arising out of or in any way connected with such use or conduct.
- Fees and Expenses
WT does not charge Authorized User any fees
for the On-Line Service.
Authorized User agrees to pay any and all costs that WT may incur in enforcing
the terms of this Agreement (including reasonable attorney"s fees and
disbursements).
- Assignment
WT may assign its rights and delegate its
duties under this Agreement to
any of its affiliates or any other party. Authorized User shall not assign this
Agreement or its rights hereunder, voluntarily or involuntarily, by operation
of law (e.g., a merger) or in any other manner, without WT"s prior written
consent. Any purported assignment in violation of this Section is null and
void. This Agreement shall be binding on Authorized User and Authorized User's
successors and assigns and shall inure to WT"s benefit and the benefit of WT"s
successors and assigns.
- Notice and Change of Address
Any notice WT sends to Authorized User concerning this Agreement or the
On-Line Service may be sent: (i) to the most recent email address the
Authorized User provided to WT in connection with the On-Line Service; or (ii)
to Authorized User"s current mailing address shown in WT"s records. If
Authorized User"s mailing or email address changes, Authorized User must
promptly notify WT in writing of the new address.
- Suspension and Termination
Notwithstanding any provision of the Agreement to the contrary, WT may,
at any time, modify, suspend or terminate Authorized User"s access to the
Website and On-Line Service, or any part thereof, immediately and without prior
notice or liability. WT may also impose limits on certain features and
services or restrict Authorized User"s access to parts or all
of the Website or On-Line Service without notice or liability. WT may,
at any time, discontinue providing the Website and On-Line Service, or any part
thereof, with or without notice.
- Changes to Agreement
WT may, at any time, change the terms and conditions in this Agreement
by providing Authorized User with written notice of such changes or updated
Agreement. The terms and conditions in this Agreement may not otherwise by
changed by Authorized User.
- Governing Law and Jurisdiction
This Agreement shall be governed by the laws of the State of Delaware,
without regard to its principles of conflict of laws and, to the extent
required, by Federal law. The parties consent to the jurisdiction of any state
or Federal court in the State of Delaware, and any appellate court therefrom.
THE PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY.
- General
This Agreement constitutes the entire agreement between Authorized User
and WT relating to Authorized User"s access to and use of the Website and
On-Line Service and supersedes any prior agreements, oral or written, or other
communications between Authorized User and WT related to the Website or On-Line
Service, including in any marketing or other similar materials. WT"s failure to
insist at any time upon strict compliance with any term of this Agreement, or
any delay or failure on WT"s part to exercise any power or right given to WT in
this Agreement, or a continued course of such conduct on WT's part, shall at no
time operate as a waiver of such power or right, nor shall any single or
partial exercise preclude any other future exercise. All rights and remedies
given to WT in this Agreement are cumulative and not exclusive of any other
rights or remedies which WT otherwise has at law or equity. Any rights not
otherwise expressly granted by this Agreement are reserved by WT. Captions are
for convenience only. If any part of this Agreement is determined by a court of
competent jurisdiction or applicable regulatory agency to be invalid or
unenforceable pursuant to applicable law including, but not limited to, the
warranty disclaimers and liability limitations set forth above, then the
invalid or unenforceable provision will be deemed superseded by a valid,
enforceable provision that most closely matches the intent of the original
provision and the remainder of the Agreement shall continue in effect.
The provisions of this Agreement which expressly or by implication are intended
to survive its termination will survive and continue to bind both Authorized
User and WT. Authorized User agrees that a copy of this Agreement and/or
evidence that Authorized User entered into this Agreement online, kept in the
normal course of WT"s business, may be entered in evidence as an original and true
copy of this Agreement. The following Sections survive termination of this
Agreement: 7, 9, 13, 18, 20, 21, 27 and 28.
