TERMS OF SERVICE
AS OF JUNE 29, 2016
Welcome to WhiteOps.com, operated by White Ops, Inc., (and, including its wholly owned subsidiaries, for the purposes of this agreement "we," "us," "White Ops" or the "Company"). We are glad to have you (either an individual or a legal entity that you represent as an authorized employee or agent, collectively "You" or "Your") as a user. The following terms and conditions (collectively, these "Terms of Service") apply to Your use of our website (the "Website"), including the services offered via the website and described herein (the "Service(s)"). We want to keep our relationship with you as simple and straightforward as possible, but please read the Terms of Service carefully before you start using the Website and the Services, because by using the Website and the Services you accept and agree to be bound and abide by these Terms of Service. This Agreement is in addition to any other agreement you may have entered into with us related to the use of the Service (a "Customer Agreement"). The Service is offered to you conditioned on Your acceptance without modification of the terms, conditions, and notices contained herein, as updated from time to time, and in addition to any other agreement you have entered into with us related to the Service.
"Account(s)" refers to Your billing account(s) for the Services, as defined in Your Customer Agreement or in Your sign up process on the Website, and including Your username and password associated with that billing account.
"Customer Data" means the data generated by the use of the Services, which, once generated, shall be the property of the Company.
"Code Block", "Detection Code," "Detection Tag" or "Deployed Code" means any instance of the Processing Software, software made available to you for interfacing with the Processing Software, or any other software or interface provided to you for the purpose of allowing you to use the Services without directly accessing the Website.
"Documentation" means any accompanying proprietary documentation made available to You by White Ops for use with the Processing Software, including any documentation available online or otherwise.
"Processing Software" or "Software" means the proprietary White Ops software and any all upgrades to such, which analyzes the Customer Data and generates the Reports or Analytics.
"Profile" means the collection of settings that together determine the information to be included in, or excluded from, a particular Report. For example, a Profile could be established to view a small portion of a web site as a unique Report. There can be multiple Profiles established under a single Site.
"Reports" or "Analytics" means the resulting analysis shown at our website after the use of the Service. "Servers" means the servers controlled by White Ops upon which the Processing Software and Customer Data are stored.
"Site" means a group of web pages that are linked to an Account and for which Deployed Code has been provided or the use of the Services has been authorized.
"Software" means the Deployed Code and the Processing Software.
2. FEES AND SERVICES
The specific aspects of the Services that we have agreed to provide to you and the fees that you have agreed to pay for the Services are set forth in Your individual Customer Agreement, subject to the terms and conditions of that agreement and/or our Pricing Policy, and these Terms of Service. White Ops may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for third party data, or other fees charged to White Ops or its corporate parents or wholly-owned subsidiaries by third party vendors for the inclusion of data in the Service Reports or Analytics. Your continued use of the Services and of any Deployed Code shall signify Your acceptance of such changes, which will be posted on the Website, and sent to you via email before such changes are put into effect. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by White Ops will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your Account.
3. ACCOUNT, PASSWORD, AND SECURITY
To register for and use the Service, You must complete the registration process by executing a Customer Agreement and providing White Ops with current, complete and accurate information therein or as prompted by the registration form, including Your e-mail address, username, password and payment information, all of which shall be part of Your Account(s). You shall protect Your password(s) and take full responsibility for Your use of Your Account(s). You shall not allow any third party to access or use Your Account(s), except as set forth in Section 9 below. You are solely responsible for any and all activities that occur under Your Account(s). You agree to notify White Ops immediately upon learning of any unauthorized use of Your Account(s) or any other breach of security. From time to time, White Ops' support staff may log into Your Account in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
4. NONEXCLUSIVE LICENSE
White Ops hereby grants You a limited, revocable, non-exclusive, non-sublicensable license (the "License") to install and use the Deployed Code solely as necessary to use the Service for one or more web pages that You own and control (collectively, "Your Site"), according to the terms of your Customer Agreement, or by way of the Website. Subject to the terms and conditions of this Agreement, You may, if applicable, remotely access, view and download Your Reports or Analytics stored on our Website. Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and the Reports or Analytics) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following: You will not nor will You allow any third party to (i) access, copy, modify, adapt, translate or otherwise create derivative works of the Software, Deployed Code, Reports or Analytics or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, including the Deployed Code, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Deployed Code, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software, contained within the Deployed Code or Documentation, or placed on or by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service, Deployed Code or the Software, except as set forth in Section 9 below. You will use the Software, Service and Reports or Analytics solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service, Deployed Code and Reports or Analytics. This License will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of the Deployed Code or Documentation in Your possession and so certify in writing to White Ops within three (3) business days of termination and cease any further use of the Service without the express written consent of White Ops.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential." For the avoidance of doubt "Confidential Information" includes but is not limited to the Processing Software, the Documentation, the Deployed Code, the Reports or Analytics, your username, your password, and any and all Customer Information. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by White Ops, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify White Ops of any unauthorized use of Your account or any other breach of security known to You.
6. INFORMATION RIGHTS
You agree to indemnify, hold harmless and defend White Ops, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against White Ops or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by White Ops or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your brand features. In such a case, White Ops will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. White Ops reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. THIRD PARTIES
If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not You are authorized to do so by White Ops or its wholly owned subsidiaries, the terms of this Section 9 shall apply to You. If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and You, the Third Party owns any rights to Customer Data in the applicable account, and (c) You shall not disclose Third Party's Customer Data to any other party without the Third Party's consent. You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. White Ops and its wholly owned subsidiaries make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to White Ops and its wholly owned subsidiaries, the Service, the Software or the Reports or Analytics, or use thereof. You agree to indemnify, hold harmless and defend White Ops and its wholly owned subsidiaries, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against White Ops or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by White Ops, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports or Analytics to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports or Analytics; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports or Analytics. You agree that you will not cause the Deployed Code or any related service to be present or run on a third party website without that third party's consent.
10. DISCLAIMER OF WARRANTIES
The information and services included in or available through the Service, including the Reports or Analytics, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. White Ops and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. White Ops does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. White Ops does not warrant or represent that the use of the Service or the Reports or Analytics will be correct, accurate, timely or otherwise reliable. You specifically agree that White Ops shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Website. THE SERVICE, THE SOFTWARE AND REPORTS OR ANALYTICS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY WHITE OPS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS OR ANALYTICS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. WHITE OPS DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS OR ANALYTICS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY
WHITE OPS SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WHITE OPS AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. White Ops' total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $500, or the amount that you have paid for the use of the services, whichever is less.
12. SERVICE LEVELS
White Ops does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond White Ops' (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where White Ops (or its wholly owned subsidiaries) or Your servers are located or co-located. Complete accuracy in all aspects of Your Reports or Analytics at all times also is not guaranteed. If for any reason our servers fail to provide the Services with regard to a given piece of information, you will not be charged for that given piece of information.
13. PROPRIETARY RIGHTS NOTICE
The Service, which includes but is not limited to the Deployed Code and the White Ops Software and all intellectual property rights in the Service are, and shall remain, the property of White Ops (and its wholly owned subsidiaries). All rights in and to the Processing Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by White Ops and its licensors without restriction, including, without limitation, White Ops' (and its wholly owned subsidiaries') right to sole ownership of the White Ops Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of White Ops; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with White Ops (or its wholly owned subsidiaries) other than in the name of White Ops (or its wholly owned subsidiaries, as the case may be); or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
14. U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
15. TERM AND TERMINATION
Either party to the Agreement may terminate it at any time and for any reason. Upon any termination or expiration of this Agreement, White Ops will cease providing the Service, and You will delete all copies of the Deployed Code code from Your Site(s) and certify thereto in writing to White Ops within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
16. MODIFICATION TO THESE TERMS OF SERVICE OR OTHER POLICIES, CONFLICTING AGREEMENTS
White Ops reserves the right to change or modify any of the terms and conditions contained in these Terms of Service, or any policy governing the Service, at any time, by posting the new agreement our Website. (or such other URL as White Ops may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of White Ops, (ii) You accept updated terms online, or (iii) You continue to use the Service and/or any Deployed Code after White Ops has posted updates to the Agreement or to any policy governing the Service. In the event that there is any conflict between your Customer Agreement and these Terms of Service, the terms and conditions of your Customer Agreement shall supersede those of this Agreement, unless otherwise stated herein.
17. MISCELANEOUS, APPLICABLE LAW, VENUE
White Ops shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. These Terms of Service, as well as your Customer Agreement (including any amendments agreed upon by the parties in writing) represents the complete agreement between us concerning its subject matter, and supersede all prior agreements and representations between the parties. If any provision of this Agreement or your Customer is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the State of New York without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New York law, rules, and regulations, New York law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Kings County, New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software may be controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals. Any notices to White Ops must be sent to: White Ops, Inc., 27 West 24th St. Suite 901, New York, NY 10010 , with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights hereunder without White Ops' prior written consent, and any such attempt is void. The relationship between White Ops and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 13, 15, and 17.