Restricted License
Kreller Solutions, Inc. (“Kreller”) hereby grants to Customer a license to use all Kreller Risk Profiles services (the “Kreller Services”), both currently existing and as may become available in the future, subject to the restrictions and limitations set forth below:
(i) Generally. Kreller hereby grants to Customer a restricted license to use the Kreller Services solely for Customer’s own internal business purposes. Customer represents and warrants that all of Customer’s use of the Kreller Services shall be for only legitimate purposes relating to its business and as otherwise governed by these Terms and Conditions (the “Agreement”). Customer shall not use the Kreller Services for marketing purposes or resell or broker the Kreller Services to any third party. Customer agrees that if Kreller determines or reasonably suspects that Customer is engaging in marketing activities, reselling or brokering the Kreller Services’ information, programs, computer applications, or data, or is otherwise violating any provision of this Agreement, or any of the laws, regulations, or rules described herein, Kreller may take immediate action, including terminating the delivery of, and the license to use, the Kreller Services. Customer may not use data to create a competing product. Customer shall comply with all laws, regulations and rules which may, in Kreller’s opinion, govern the use of the Kreller Services and information provided therein.
(ii) Copyrighted Materials. Customer shall not remove or obscure the copyright notice or other notices contained on materials accessed through the Kreller Services.
(iii) Use of Services. Customer certifies that it will use the data and/or information obtained through the Kreller Services solely in connection with present or prospective credit, financial, or risk management transactions with the business entities to which the Customer’s inquiries relate. Customer also certifies that it will not use any of the information it receives through the Kreller Services for any of the following purposes: (1) in establishing a consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes or in connection with the review or collection of an existing credit account of a consumer; (2) for employment purposes; (3) in connection with a determination of a consumer’s eligibility for a license or other benefit granted by a government agency; (4) as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation; or, (5) for any other purpose deemed to be a permissible purpose under the Fair Credit Reporting Act.
(iv) Disputes. Customer shall refer all third parties who have questions or disputes about information in the Kreller Services to Kreller.
Security
Customer shall (a) restrict access to Kreller Services to those employees who have a need to know as part of their official duties; (b) ensure that none of its employees (i) obtain and/or use any information from the Kreller Services for personal reasons, or (ii) transfer any information received through the Kreller Services to any third party except as permitted hereunder or required by law; (c) immediately notify Kreller to deactivate the user identification number of any employee who no longer has a need to know, or terminated employees on or prior to the date of termination; (d) keep all user identification numbers confidential and prohibit the sharing of user identification numbers; (e) in addition to any obligations contained herein, take all commercially reasonable measures to prevent unauthorized access to, or use of, the Kreller Services or data received therefrom, whether the same is in electronic form or hard copy, by any person or entity; (f) be capable of receiving the Kreller Services where the same are provided utilizing so-called ‘secure socket layer’, or such other means of secure transmission deemed reasonable by Kreller; and (g) not access and/or use the Kreller Services via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Kreller.
Performance
Kreller will use reasonable efforts to deliver the Kreller Services requested by Customer and to compile information gathered from selected public records and other sources used in the provision of the Kreller Services; provided, however, that Customer accepts all information “AS IS.” Customer acknowledges and agrees that Kreller obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Customer shall not rely on Kreller for the accuracy or completeness of information supplied through the Kreller Services. Kreller reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of, the Kreller Services.
Disclaimer of Warranties/Limitation of Liability
For purposes of indemnification, disclaimer of warranties, and limitations on liability, Kreller, its subsidiaries and affiliates, and its third party data providers are hereby collectively referred to as “Kreller.” Customer acknowledges that Kreller maintains several databases updated on a periodic basis, and that Kreller does not undertake a separate investigation for each inquiry or request for Services made by Customer. Customer also acknowledges that the prices Kreller charges for the Services are based upon Kreller’s expectation that the risk of any loss or injury that may be incurred by use of the Services will be borne by Customer and not Kreller. If Customer reasonably determines that the Services do not meet Kreller’s obligations under this Agreement, Customer shall so notify Kreller in writing within 30 days after receipt of the Services in question. Customer’s failure to so notify Kreller shall mean that Customer accepts the Services as is. If Customer so notifies Kreller within 30 days after receipt of the Services, then, unless Kreller reasonably disputes Customer’s claim, Kreller shall, at its option, either re-perform the Services in question or issue Customer a credit for the amount Customer paid to Kreller for the nonconforming Services. Kreller’s REPERFORMANCE OF THE NONCONFORMING SERVICES OR THE CREDIT FOR ANY FEES CUSTOMER HAS PAID FOR SUCH NONCONFORMING SERVICES SHALL CONSTITUTE CUSTOMER’S SOLE REMEDY AND KRELLER’S MAXIMUM LIABILITY UNDER THIS AGREEMENT. Kreller does not make and hereby disclaims any warranty, express or implied, with respect to the Kreller Services provided hereunder. Kreller does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the Kreller Services or information provided therein. In no event shall Kreller be liable for any indirect, incidental, or consequential damages, however arising, incurred by Customer from receipt or use of information delivered hereunder or the unavailability thereof.
News Data Disclaimer
In the event Customer receives news aggregation information (“News Data”) as part of the Kreller Services, Customer acknowledges that the News Data represents content that Kreller obtains from third parties. Accordingly, Kreller disclaims all warranties, express and implied, with respect to the News Data, including warranties of non-infringement. Customer releases and discharges Kreller, Cortera, Inc., and its third party data providers from all claims arising out of Kreller’s provision of News Data to Customer.
Credit Guidance Disclaimer
Customer acknowledges that the prices Kreller charges for assessing the databases in order to provide the Services are based upon Kreller’s automatic calculation methods and its expectation that the risk of any loss or injury that may be incurred by use of the Services will be borne by Customer and not Kreller. If Customer reasonably determines that Kreller’s assessment and Credit Guidance for any inquiry do not meet Kreller’s obligations under this Agreement, Customer agrees that the disclaimer and limitations set forth in Section 4 of this Agreement will apply. In addition, Customer acknowledges that Kreller’s system allows Customer’s administrator to adjust the Credit Guidance for an inquiry. This adjustment may result in misleading or erroneous Credit Guidance for the inquiry. Customer agrees that Kreller is not responsible for any changes or errors in Credit Guidance resulting from adjustments made by Customer’s administrator.
Bankruptcy, Tax Lien, and Civil Judgment Information
Customer acknowledges that any bankruptcy, tax lien, or civil judgment information will be subject to additional terms and conditions. The most recent version of these terms and conditions are found here, and are hereby incorporated by reference. Customer hereby agrees to these additional terms and conditions.
Indemnification
Customer hereby agrees to protect, indemnify, defend, and hold harmless Kreller from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) arising from or in any way related to use of information received by Customer (or any third party receiving such information from or through Customer) furnished by or through Kreller as a result of Customer’s breach of this Agreement.
Audit
Customer understands and agrees that in order to ensure compliance with the terms and conditions of this Agreement, Kreller may conduct periodic reviews of Customer’s use of the Kreller Services and may, upon reasonable notice, audit Customer’s records, processes and procedures related to Customer’s use, storage and disposal of Kreller Services and information received therefrom. Customer agrees to cooperate fully with any and all audits. Violations discovered in any review and/or audit by Kreller will be subject to immediate action including, but not limited to, suspension or termination of the license to use the Kreller Services, reactivation fees, legal action, and/or referral to federal or state regulatory agencies.
Excusable Delays
Kreller will not be liable to Customer for any delay or failure in its performance of any of the acts required by this Agreement if and to the extent that such delay or failure arises beyond Kreller’s reasonable control, including, without limitation, acts of God or public enemies, labor disputes, equipment malfunctions, computer downtime, material or component shortages, supplier failures, embargoes, earthquakes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, flood, epidemics, riots and strikes legal action, and/or referral to federal or state regulatory agencies.
Payments/Late Payments
Customer agrees to pay the prices specified on the Kreller Risk Profiles Pricing Agreement between the parties and to pay for all Kreller Services in accordance with the payment terms set forth on this Pricing Agreement. All unpaid fees and late payments will bear interest at the lesser of the rate of 1 ½% per month or the maximum rate of interest then permitted to be charged for each month of delinquency.
Term and Termination
This Agreement is for services rendered and shall be in full force and effect during such time as Kreller is providing the Kreller Services to Customer. Kreller reserves the right to modify, update, or discontinue the Kreller Services at its sole discretion, at any time, for any or no reason, and without notice or liability. Kreller may close any Customer account at any time in its sole discretion. Provisions hereof relating to limits on liability, indemnification, use and protection of information and data, payment for the Kreller Services, audits, and disclaimers of warranties shall survive the termination of this Agreement.
Governing Law; Exclusive Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without effect to conflict of law principles. Additionally, any action arising under this Agreement shall be brought within the jurisdiction and venue of the state courts of Hamilton County, Ohio.
Attorneys’ Fees
The prevailing party in any action, claim, or lawsuit brought pursuant to this Agreement is entitled to payment of all attorney’s fees and costs expended by such prevailing party in association with such action, claim, or lawsuit.
Assignment
This Agreement may not be assigned by Customer, in whole or in part, without the prior written consent of Kreller. For Customers that are corporations, organizations, or entities, a change in ownership of twenty percent (20%) or more of the outstanding shares of Customers shall constitute an assignment.
Taxes
The fees for all Kreller Services are exclusive of any state, local, or otherwise applicable sales, use, or similar taxes. If any such taxes are applicable, they will be charged to Customer’s account.
Relationship of The Parties
Customer and Kreller are independent contractors of one another. Neither party shall at any time represent that they are authorized agents or representatives of one another.
Entire Agreement
Except as otherwise set forth herein, this Agreement sets forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, negotiations, or communications, whether oral or written, by any employee, or representative of either party. Any new, other, or different terms supplied by Customer that are not contained in this document, including any terms contained in purchase orders or confirmations issued by Customer, are specifically rejected by Kreller unless Kreller agrees to them in a signed writing specifically including those new, other, or different terms. The terms of this Agreement shall supersede and govern in the event of a conflict with the terms of any other document into which this Agreement is incorporated by reference. In the event one or more provisions of this Agreement are deemed unenforceable, the enforceability of the remaining provisions shall remain unimpaired.
