This Agreement is between You (“Licensee”), being the organisation or person entered in the Organisation Name field in your Account, and WhosOnLocation Limited, (“Licensor”).
These Terms are binding on any use of the Service and apply to You from the time that WhosOnLocation provides You with access to the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
The Service includes any upgrades, modified versions, updates to the Site developed by us, and the Helpdesk.
means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Site (which WhosOnLocation may change from time to time on notice to You). Your Access Fee includes the fee for your License Plan and any fee for any Add-ons that You have subscribed to.
means the person who has the highest level of access to Your Account. An Account Owner has the same rights as an Administrator plus they can also access the License Plan, Add-ons Management, and Billing Details. Account Owners assign Administrators to the Administrator role.
means any opt-in feature or function that requires independent activation by the Account Owner via the Add-ons management tool available on the Site.
means any person granted Administrative rights by the Account Owner. Administrators manage Account settings and can assign privileges to Invited Users.
means the application programming interfaces developed and enabled by the WhosOnLocation that permits Customer to access certain functionality provided by the Service, including without limitation, the REST API that enables the interaction with the Service automatically through HTTP requests and the application development API that enables the integration of the Service with other web applications.
a coupon is a ticket or document that carries a unique alpha numeric code that, when entered into the Site at the time of registering Your account, results in either a discount on Your Access Fee for the first year (which may also include a waiver of any free Trial Period), a discount on an Add-on, or an extended trial period.
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Data entered into the Site by Your Invited Users but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
Means the organisation or person entered into the Organisation Name field in Your Account. Also referred to as the Licensee.
means any data inputted by You or by Your Invited Users into the Site including all text, sound, video, or image files, and software.
means the approximate location of a WolMobile user which is determined using Location Services or a Vehicle (which has a GPS device enabled).
means any non-employee of Your organization; for example, a visitor or contractor.
“Intellectual Property Right”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the period during which You have agreed to subscribe to the Service with respect to Your Payment Frequency.
means the license plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribe with respect to each Location.
means a physical location where You carry out Your tasks and responsibilities. Locations are normally described as workplaces like Head Office, Warehouse, School premises, Manufacturing Plants, etc… but can be non-workplaces.
“Location Access Control Point”
means a physical place within a location where people sign themselves into and out of. For example: Main Reception, Warehouse Entrance, Security Gate 1 etc…
means those user requested services accessible from a user’s mobile phone by WolMobile which uses information from cellular, Wi-Fi, and Global Positioning System (GPS) networks to determine a user’s approximate location if they request it using the opt-in functions on WolMobile.
means the period You have nominated to pay Your Access Fee; this being monthly or yearly in advance.
means the online people presence management services made available (as may be changed or updated from time to time by WhosOnLocation) via the Site and other web pages designated by WhosOnLocation, including, individually and collectively, the applicable Software, Updates, API and Documentation.
means a Guest or Employee signing into a Location using the people presence management tools available in the Service for the purpose of registering their presence on-site.
means the application Internet sites operated by WhosOnLocation and identified by the URL Domain whosonlocation.com.
means ‘Short Message Service’ and is also commonly referred to as a “text message”. WhosOnLocation uses SMS (text) notifications in many areas of its service including, but not limited to, visitor arrival notifications, evacuation management notifications, and trigger notifications. With a SMS, you can send a message of up to 160 characters to another device. Longer messages, those exceeding 160 characters, will automatically be split up into several parts. So a 200 character SMS will consist of 2 parts. A 325 character SMS consists of 3 parts etc…/p>
SMS credits are redeemed when SMS (text) messages are sent. 1 credit is redeemed (debited) from your SMS credits balance for every 160 character part sent. Credits are sold in ‘Packs’ and one Pack is 1000 SMS Credits.
Other than the initial 50 Free SMS credits applied to your Trial account, SMS services incur an additional charge. You can choose not to use SMS. Current SMS Fees are published on our website.
means the free, no obligation period You have to evaluate and trial the Service or an Add-on. This is normally 30 days unless you redeem a Coupon which has a provision for a different Trail Period.
means any person or entity, which uses the Service with the authorisation of an Administrator from time to time.
means WhosOnLocation Limited which is a registered company incorporated in Wellington, New Zealand and all current and future global subsidiaries of WhosOnLocation Limited including, without limitation WhosOnLocation Pty Limited (Australia).
means WhosOnLocation’s mobile evacuation management app. Nominated users can perform a range of functions depending on the need at the time of the evacuation;
means WhosOnLocation’s mobile app. Nominated users can perform a range of functions depending on the WolMobile rights they are granted by an Administrator;
means the Account Owner, and where the context permits, an Invited User. “Your” has a corresponding meaning.
The safety and security of people and assets starts with knowing who is on-site. The purpose of WhosOnLocation is to keep people and assets safe by giving organisations real-time visibility of who is authorised access to their sites, who is coming on-site, who is actually on-site, and who was on-site. We aim to do this in a way that’s simple, smart and secure.
WhosOnLocation grants You the right to access and use the Service via the Site with the particular user roles available to You according to Your License Plan. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that:
At the conclusion of your Trail Period You can choose the License Plan that best meets your requirements. There are five License Plans to choose from:
You can upgrade or downgrade your License Plan for any Location anytime. WhosOnLocation reserves the right to review Your License Plan anytime and if Your annual Guest and/or Employee sign-in count exceeds Your current Plan, You must upgrade to a Plan that meets Your requirements.
An invoice for the Access Fee will be issued by Us, or our authorized Reseller. You can nominate Your payment frequency (Monthly or Yearly). The initial License period commences from the day after Your Trial Period expired (except where a Coupon Code waives any Trial Period – see below (8.2)) in which case your License period commences the same day as you register Your WhosOnLocation account.
When you registered your WhosOnLocation Trial we credit Your account 50 free SMS Credits. Once these free credits are used, should You continue to use our SMS services You agree to pay for any SMS Credits used. SMS Credits are purchased as a ‘Pack’ with each Pack equating to 1000 SMS Credits. SMS Fees are an additional cost and are not included in your Access Fee, however SMS Pack purchases may be included in your Access Fee Invoice or, when purchased outside of your normal Access Fee Invoice cycle, as a separate invoice. Your SMS Credits balance is available to Account Owners, within the application, under Tools | Account | SMS Status.
All WhosOnLocation invoices will be sent to the Billing Contact whose details are provided by You and recorded under the ‘Account’ / ‘Billing Details’ section of the Account Owners Tools. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 10 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fees.
If You are a Licensed User through one of our Authorized Resellers they retain the right to invoice on a different cycle agreed by You and them.
WhosOnLocation, or our approved Reseller, will continue invoicing You monthly or yearly until this Agreement is terminated in accordance with clause 22.
From time to time our authorised Resellers may bundle their product or service with a WhosOnLocation License that includes the first 12 months Access Fee. In effect, when You purchase their product or service and then register for the WhosOnLocation Service, and redeem the Coupon Code that was included with their product or service, your Trial Period is waived and Your first License Term commences from the day you registered to use the Service. In such circumstances You are not required to pay any Access Fee unless you renew Your License 12 months from the day You registered to use the Service or upgrade to a higher License Plan or subscribe to an opt-in Add-on and that Add-on has an additional Access Fee.
You may from time to time be offered preferential pricing or discounts for the Access Fees as a result of the number of locations that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fees in relation to all of Your locations. Without prejudice to any other rights that WhosOnLocation may have under these Terms or at law, WhosOnLocation reserves the right to render invoices for the full (non-discounted) Access Fees due or suspend or terminate Your use of the Service in respect of any or all of Your locations in the event that any invoices for those Access Fees are not paid in full by the due date for payment.
You must only use the Service and Site for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by WhosOnLocation or condition posted on the Site. You may use the Service and Site on behalf of others or in order to provide services to others but if You do so You must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all Terms of this Agreement that apply to You.
8.5.1 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify WhosOnLocation of any unauthorised use of Your passwords or any other breach of security and WhosOnLocation will reset Your password and You must take all other actions that WhosOnLocation reasonably deems necessary to maintain or enhance the security of WhosOnLocation’s computing systems and networks and Your access to the Services.
8.5.2 As a condition of these Terms, when accessing and using the Services, You must:
22.214.171.124 not attempt to undermine the security or integrity of WhosOnLocation’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
126.96.36.199 not use, or misuse, the Services in any way which may impair the functionality of the Services or Site, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Site;
188.8.131.52 not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
184.108.40.206 not transmit, or input into the Site, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
220.127.116.11 not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Site except as is strictly necessary to use either of them for normal operation.
Use of the Service may be subject to limitations, including but not limited to monthly people transaction volumes (Sign-ins) You are permitted to make against WhosOnLocation’s application programming interface. Any such limitations will be defined under your License Plan.
As a condition of these Terms, if You use any communication tools available through the Site (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Site, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Site, You represent that You are permitted to make such communication. WhosOnLocation is under no obligation to ensure that the communications on the Site are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Site. However, WhosOnLocation does reserve the right to remove any communication at any time in its sole discretion.
8.8.1 You indemnify WhosOnLocation against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to WhosOnLocation, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
8.8.2 You are not liable to us under clause 8.8.1 for any:
a. loss of profit; or
b. consequential, indirect, incidental or special damage or loss of any kind.
8.8.3 Clause 8.8.2 does not apply to limit your liability:
a. for any actual or alleged claim by a third party that any Customer Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is incorrect, misleading, objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way;
b. for personal injury, death, fraud or wilful misconduct;
c. to pay the Access Fees and any recovery costs that WhosOnLocation incurs in relation to unpaid Access Fees; or
d. for a breach of clause 15.1.
WhosOnLocation operates an online helpdesk to administer user enquiries. You can access the Helpdesk via the Site.
In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting WhosOnLocation. If You still need technical help, please check the support provided:
Any adjustment to Your Access Fee must be issued in writing to You at least 30 days prior to the commencement of that fee adjustment. Any adjustment to Your Access Fee will not apply until Your next License renewal.
In the event we introduce new Add-ons (Features) that we feel require the introduction of a new fee for that respective new feature’s use; we will advise You, as per our Service Level Commitment detailed in Clause 13.2, 10 days prior to the new feature being released in the Application. You are not obligated to accept or activate any new Add-on feature or service that requires the introduction of a new fee.
Is an Add-on using Location Services to determine the Geolocation of a user. Depending on your device and available services, Location Services uses a combination of cellular, Wi-Fi, and GPS to determine your location. If you’re not within a clear line of sight to GPS satellites, your device can determine your location using crowd-sourced Wi-Fi and cell tower locations. WhosOnLocation takes no responsibility for the accuracy of a WolMobile user or GPS device.
Is an Add-on that allows users to verify the safety of employees, visitors, and contractors in the event of an evacuation. A feature of WolEvac is ‘SMS Verify’ whereby the WolEvac user can activate an SMS message to be sent to employees, and Guests (recipients) requesting they respond to confirm they are safe. The cost of sending this SMS message to recipients is as per the SMS Fees detailed on our website; http://www.whosonlocation.com/pricing. Depending on the recipient’s mobile/cellular phone carrier the carrier may charge the recipient for both receiving the initial SMS from WolEvac and subsequently responding.
Whilst we intend that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service or Site may be unavailable to permit maintenance or other development activity to take place.
We have achieved 99.9% availability each year since the Service was first activated in 2007. For clarification 99.9% up-time equals 8 hours, 45 minutes, and 57 seconds of downtime per year. Availability in the last 12 months has been 99.99%.
(This statistic was last updated on 1st September 2016)
Force Majeure: We are not responsible for the Service being unavailable where the cause of the event is outside of our control. Such events include, but are not limited to, Acts of God, Terrorism, Earthquake, Flood, Internet Outage, Power Failure, or any other Force Majeure event.
If for any reason we have to interrupt the Service for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Site login screen, and via updates through our social media channels.
We will advise You via one, some, or all of the following channels:
As soon as practicable of any unplanned outage that occurs We will keep you updated every 30 minutes until availability is restored. Updates will be communicated via one, some, or all of the channels above.
We will advise You no less than 5 Days in Advance of any Feature release or Update.
We release new features during non-business hours and with as little disruption to users as possible.
We will advise You 2 Days in Advance via one, some, or all of the channels listed above with revised delivery dates before the scheduled release.
If you contact our Helpdesk team on firstname.lastname@example.org, we will provide:
Our Service Level Agreement Commitment for availability | Uptime is 99.9% per month | per annum which equates to downtime of:
We provide financial backing to our commitment to achieve and maintain Service Levels. If we do not achieve and maintain the Service Levels as described in this Service Level Commitment (SLC), then you may be issue a claim for free extensions to your current License Term by sending an email to email@example.com.
14.1.1 Penalty for breach of Service Level Commitments 13.1 to 13.4
One free month extension to your current License Term.
4.1.2 Penalty for breaching Service Level Commitment 13.5; Availability | Uptime:
Monthly Uptime Percentage
Access Fee Credit
1 Month Free License Added to your current Term across all Locations
2 Months Free License Added to your current Term across all Locations
3 Months Free License Added to your current Term across all Locations
Downtime is the total minutes in a month during which the aspects of a Service is unavailable. Scheduled Downtime and unavailability of a service, due to limitations such as the failure of a Customer’s hardware, or the Customer’s ISP failure, or any Force Majeure event are not eligible in the calculation.
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
15.1.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
15.1.2 Each party’s obligations under this clause will survive termination of these Terms.
15.1.3 The provisions of clauses 15.1.1 and 15.1.2 shall not apply to any information which:
18.104.22.168 is or becomes public knowledge other than by a breach of this clause;
22.214.171.124 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
126.96.36.199 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
188.8.131.52 is independently developed without access to the Confidential Information. 15.2 Privacy
Our policy is to respect and protect the privacy of our users. This policy statement tells You how we collect information from You and how we use it. We follow five core principles of privacy protection in the operation of its Application:
15.3.1 You acknowledge that:
184.108.40.206 WhosOnLocation may require access to the Customer Data to exercise its rights and perform its obligations under these Terms; and
220.127.116.11 to the extent that this is necessary but subject to clause 15.1, WhosOnLocation may authorise its officers, employees, contractors and agents to access the Customer Data for this purpose.
15.3.2 You must arrange all consents and approvals that are necessary for WhosOnLocation to access the Customer Data as described in clause 15.3.1.
15.3.3 You acknowledge and agree that to the extent Customer Data contains personal information, in collecting, holding and processing that information through the Service, WhosOnLocation is acting as an agent of yours for the purposes of applicable privacy law. You must obtain all necessary consents from the relevant individual to enable WhosOnLocation to collect, use, hold and process that information in accordance with these Terms.
WhosOnLocation adheres to the same principles for all requests from government agencies for user data, requiring governmental entities to follow the applicable laws, rules and procedures for requesting customer data. WhosOnLocation does not provide any government with direct and unfettered access to our customers’ data, and we do not provide any government with our encryption keys or the ability to break our encryption. If a government wants customer data, it needs to follow applicable legal process – meaning, it must serve us with a warrant or court order for content or a subpoena for subscriber information or other non-content data.
We require that any requests be targeted at specific accounts and identifiers. WhosOnLocation’s compliance team reviews government demands for user data to ensure the requests are valid, rejects those that are not valid, and only provides the data specified in the legal order.
Unless the warrant or court order prohibits disclosure to You, upon receipt of any third party request for Customer Data, WhosOnLocation will promptly notify Customer. If WhosOnLocation is not required by law to disclose the Customer Data, WhosOnLocation will reject the request. If the request is valid and WhosOnLocation could be compelled to disclose the requested information, WhosOnLocation will attempt to redirect the third party to request the Customer Data from Customer.
WhosOnLocation is committed to helping protect the security of Customer’s information. We have implemented and will maintain and follow appropriate technical and organizational measures intended to protect Customer Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction.
Organization of Information Security
Security Ownership. WhosOnLocation has appointed one or more security officers responsible for coordinating and monitoring the security rules and procedures.
Security Roles and Responsibilities. WhosOnLocation personnel with access to Customer Data are subject to confidentiality obligations.
Asset Inventory. WhosOnLocation maintains an inventory of all media on which Customer Data is stored. Access to the inventories of such media is restricted to WhosOnLocation personnel authorized in writing to have such access.
Human Resources Security
Security Training. WhosOnLocation informs its personnel about relevant security procedures and their respective roles. WhosOnLocation also informs its personnel of possible consequences of breaching the security rules and procedures. WhosOnLocation will only use anonymous data in training.
Physical and Environmental Security
Communications and Operations Management
Operational Policy. WhosOnLocation maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Customer Data.
Data Recovery Procedures
Event Logging. WhosOnLocation logs access and use of information systems containing Customer Data, registering the access ID, time, authorization granted or denied, and relevant activity.
Access Policy. WhosOnLocation maintains a record of security privileges of individuals having access to Customer Data.
Integrity and Confidentiality
Network Design. WhosOnLocation has controls to avoid individuals assuming access rights they have not been assigned to gain access to Customer Data they are not authorized to access.
Information Security Incident Management
Incident Response Process
Business Continuity Management
Third-Party Penetration Testing
WhosOnLocation tests all code for security vulnerabilities before release, and regularly scans our network and systems for vulnerabilities. Third-party assessments are also conducted regularly against OWASP and other global standards. Testing includes:
If WhosOnLocation becomes aware of any unlawful access to any Customer Data stored on WhosOnLocation’s equipment or in WhosOnLocation’s facilities, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Customer Data (each a “Security Incident”), WhosOnLocation will promptly:
Notification(s) of Security Incidents will be delivered to one or more of Customer’s administrators by any means WhosOnLocation selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on their WhosOnLocation account profile. WhosOnLocation’s obligation to report or respond to a Security Incident under this section is not an acknowledgement by WhosOnLocation of any fault or liability with respect to the Security Incident.
Customer must notify WhosOnLocation promptly about any possible misuse of its accounts or authentication credentials or any security incident related to WhosOnLocation.
This license is not a sale. Title to, and all Intellectual Property Rights in the Services, the Site and any documentation relating to the Services remain the property of WhosOnLocation (or its licensors).
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the WhosOnLocation Access Fee when due. You grant WhosOnLocation a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You. In the event of Termination of your account you can, as per Clause 22.7, download a copy of Your Data.
WhosOnLocation adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data.
If You enable third-party applications for use in conjunction with the Services, You acknowledge that WhosOnLocation may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. WhosOnLocation shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that
20.2.1 You are authorised to use the Services and the Site and to access the information and Data that You input into the Site, including any information or Data input into the Site by any person You have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Site and the Services (whether that information and Data is Your own or that of anyone else).
20.2.2 WhosOnLocation has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Site on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that:
18.104.22.168 You are responsible for ensuring that You have the right to do so;
22.214.171.124 You are responsible for authorising any person who is given access to information or Data, and You agree that WhosOnLocation has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
126.96.36.199 You will indemnify WhosOnLocation against any claims or loss relating to WhosOnLocation’s refusal to provide any person access to Your information or Data in accordance with these Terms:
20.2.3 The provision of, access to, and use of, the Services are on an “as is” basis and at Your own risk.
20.2.4 WhosOnLocation does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. WhosOnLocation is not in any way responsible for any such interference or prevention of Your access or use of the Services.
20.2.5 It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
WhosOnLocation gives no warranty about the Services other than as stated elsewhere in these Terms. Without limiting the foregoing, WhosOnLocation does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Site or these Terms.
21.1 To the maximum extent permitted by law, we exclude all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any consequential loss or damage (including loss of profits and savings) resulting, directly or indirectly, from any use of, or reliance on, the Service or Site.
21.2 Subject to clauses 21.3 below, if You suffer loss or damage as a result of our negligence or failure to comply with these Terms, any claim by You against us arising from our negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the License Fees paid by You in the previous 12 months. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 22.
21.3 This clause 21 does not apply to limit our liability for personal injury, death, fraud or wilful misconduct.
If for any reason we suspect You have no intention of becoming a licensed user or, after becoming a licensed user have reason to suspect you are a competitor with no Good Faith intention of using the Services for its intended Purpose, we reserve the right to terminate Your trial or Account without prejudice immediately.
WhosOnLocation will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
These Terms will continue for the period covered by the Access Fee paid or payable under clause 8.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
Clauses 8.1, 8.7, 15, 19, 20, 21, and 22 survive the expiry or termination of these Terms.
We will retain Customer Data stored in your account for 30 days after expiration or termination of Your License Plan. After the 30-day retention period ends, We will disable Customer’s account and delete all Customer Data except that information that we must retain for our own company records that shows You were a Customer and we are obligated to retain by Law. If Your Access Fees are fully paid at the time of termination You will be able to download a copy of Your Data prior to deletion.
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without WhosOnLocation’s prior written consent.
23.5.1 If the information or Data You are accessing using the Services and the Site is solely that of a person who is a tax resident in New Zealand at the time that You accept these Terms then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
23.5.2 If the information or Data You are accessing using the Services and the Site is solely that of a person who is a tax resident in Australia at the time that You accept these Terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.
23.5.3 If the information or Data You are accessing using the Services and the Site is solely that of a person who is a tax resident in the United States of America at the time that You accept these Terms then the State of California law govern this Agreement and You submit to the exclusive jurisdiction of the state courts of San Francisco County, California or federal court for the Northern District of California for all disputes arising out of or in connection with this Agreement.
23.5.4 In all other situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
23.5.5 Notwithstanding the above, you agree that WhosOnLocation shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
23.5.6 Arbitration Option
188.8.131.52 For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties.
184.108.40.206 The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties. 23.7 Notices:
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to WhosOnLocation must be sent to firstname.lastname@example.org or to any other email address notified by email to You by WhosOnLocation. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
Email at email@example.com or by writing to:
WhosOnLocation Customer Services
P.O. Box 15 145
Wellington, New Zealand 6243
Last Updated on: 25 May 2017