Special Access Portal Terms of Use and Confidentiality Requirements

The Supreme Court of Appeals of West Virginia (the “Court”) grants access to Court records through this Special Access Portal (“SAP”). The confidential information and documents contained within this SAP are for official business purposes only; and by accessing this SAP, you (the “User”) agree to abide by the following terms, conditions, responsibilities, and acknowledgements (collectively, “Terms of Use”).

Access shall be utilized for official active investigative searches within the scope of your Organization’s needs and access is a privilege provided by the Court that may be altered, denied, or terminated at the Court’s discretion without warning.

Information and/or documents gained or received as a User of this SAP shall remain confidential and shall not be shared and/or disseminated to any unauthorized person or Organization. Failure to comply may result in termination of access at the discretion of the Court. In addition, failure to comply may also lead to civil and/or criminal charges.

Designated Organization Account Administrator

Each Organization is required to designate an Account Administrator (the “Administrator”) to serve as the official contact between the Organization and the Court for SAP access requests, changes, and notifications.

SAP access requires assignment of a unique, personal username, and password (“credentials”). The User is required to notify the Administrator immediately (within twenty-four [24] hours) if the User 1) believes credentials may have been compromised, i.e.: lost and/or stolen, 2) learns of any misuse of this SAP, or 3) has any changes to employment status that may change current SAP access. Additionally, the User shall provide updated contact information to the Administrator as changes occur and likewise the Court may use this contact information for multifactor authentication, if/when required. Use of multifactor authentication may also require the User to provide an alternate means to authenticate, e.g.: cellular device, etc. Refusal to comply with multifactor authentication requirements may result in loss of access to this SAP.

Credentials

Maintaining credentials requires the User to:

1. Protect assigned credentials and not share with anyone.
2. Take reasonable measures to ensure the computer screen is not visible by others while entering credentials or accessing this SAP.
3. Access this SAP only with the assigned credentials.
4. Remain connected to this SAP only when actively performing inquiries
5. Never leave the computer unattended while logged into this SAP.

The User is prohibited from misusing, giving, selling, transmitting, or transferring any information, data, or document obtained from access to this SAP to any other person, entity, or governmental Organization except as permitted by law in the User’s official capacity.

The Court has the right to monitor SAP access at any time and to conduct access and usage audits to ensure compliance.

Termination of Access

Failure to comply with the Terms of Use may result in termination of access at the discretion of the Court. In addition, failure to comply could also lead to civil and/or criminal charges.

You shall not during, or at any time after termination of access, disclose or divulge to any other individual, any of the confidential and sensitive information gained through access to this SAP in violation of the Terms of Use.

Upon termination of access, the User agrees to return or certify destruction of all printed materials originating from the use of this SAP, including copies.

In the event that access is terminated by either the Organization or the Court, the User agrees that all confidentiality obligations shall survive the expiration or termination of access indefinitely in accordance with the Terms of Use.

Confidential Information and Materials

Confidential Information means any nonpublic information whether the Court specifically marks and designates, either orally or in writing, as confidential or which, under the circumstances surrounding the disclosure, ought to be treated as confidential.  Such confidential information may include, but is not limited to: social security numbers; operator license numbers; victim information including name, address and other contact information; informant information including name, address and other contact information; juror information including name, address and other contact information; a party’s street address, except the city, state, and ZIP code; witness information including name, address and other contact information; SID (state identification) numbers; financial Organization account numbers, credit card numbers, PINS or passwords used to secure accounts; notes, drafts, and work products related to court administration or any office that is the primary custodian of an electronic case record; information sealed or protected pursuant to court order; information on unserved warrants that may jeopardize an active investigation and cause risk to officer safety; information to which access is otherwise restricted by federal law, state law, or state court rules; and information presenting a risk to personal security, personal privacy, or the fair, impartial and orderly administration of justice, as determined by the Administrative Director of the Supreme Court of Appeals of West Virginia with approval of the Chief Justice.

Confidential Information does not include any materials or information which the User shows: (i) is at the time of disclosure generally known by or available to the public or became so known or available thereafter through no fault of the User; or (ii) is furnished by the Court to third parties without restriction; or (iii) is furnished to the User by a third party who legally obtained said information and the right to disclose it.

Confidential Materials shall mean any and all materials containing Confidential Information, including without limitation: drawings, schematics, written or printed documents, or their digital representations that may be contained on compact disks (CD), flash drives, or other electronic storage mediums whether machine or user readable, photographs, recordings, and all forms of information stored in any medium or form whatsoever.

Restrictions

The User will (i) limit disclosure of any Confidential Information to its Organization and its directors, officers, employees, agents, or representatives (collectively “Representatives”) who are lawfully entitled to such Confidential Information and have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which the Terms of Use relates, and only for that purpose, and (ii) advise its Representatives of the sensitive nature of the Confidential Information and of the obligations set forth in the Terms of Use and require such Representatives to keep the Confidential Information confidential.  Each party shall be responsible for any breach of the Terms of Use by any of their respective Representatives.

User shall not disclose any Confidential Information to third parties without the prior written authorization of the Court. User shall not at any time disclose to any third party any Confidential Information of any other party to whom the Court owes an obligation. However, User may disclose Confidential Information in accordance with judicial or other governmental orders, provided User shall give the Court reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.

User shall not use any Confidential Information or Confidential Materials of the Court for any purposes except those expressly contemplated hereby or as authorized in writing by the Court.

User shall take reasonable security precautions to keep the Confidential Information secure, private, and intact as confidential.

Confidential Information and Confidential Materials may be disclosed, reproduced, summarized or distributed only in accordance with the Terms of Use.

Rights and Remedies

User must notify the Court immediately upon discovery of any unauthorized use or disclosure of Confidential Information or Confidential Materials, or any other breach of the Terms of Use by User, and must cooperate with the Court in every reasonable way to help the Court regain possession of the Confidential Information and/or Confidential Materials and prevent further unauthorized use or disclosure.

User must return all originals, copies, reproductions and summaries of Confidential Information and/or Confidential Materials then in User’s possession or control at the Court’s request or, at the Court’s option, certify destruction of the same.

User acknowledges that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to the Court that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, both parties hereby agree that the Court shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The Court shall be entitled to recover its costs and fees including reasonable attorneys’ fees, incurred in obtaining any such relief.

Miscellaneous

All Confidential Information and Confidential Materials are and shall remain the sole and exclusive property of the Court.

None of the provisions of the Terms of Use may be deemed to have been waived by any act or acquiescence on the part of the Court, its agents, or Employees but only by an instrument in writing signed by an authorized officer of the Court.  No waiver of any provision of this Agreement constitutes a waiver of any other provision(s) or of the same provision on another occasion.  Failure of either party to enforce any provision of the Terms of Use does not constitute waiver of such provision or any other provisions of the Terms of Use.

If any action at law or in equity is necessary to enforce or interpret the rights arising out of or relating to the Terms of Use, the Court, if it prevails in such action, will be entitled to recover reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which it may be entitled. The User acknowledges that the Court is a branch of the government of the State of West Virginia and is therefore immune from suit under Section 35, Article VI of the Constitution of West Virginia. The User therefore agrees and acknowledges that the sole forum for any claim or lawsuit the User may have arising from the Terms of Use is the West Virginia Legislative Claims Commission.

The Terms of Use must be construed and governed by the laws of the State of West Virginia.

If any provision of the Terms of Use is ruled by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.  Should any of the obligations of the Terms of Use be found illegal or unenforceable as being too broad with respect to the duration, scope or subject matter thereof, such obligations will be deemed and construed to be reduced to the maximum duration, scope or subject matter allowable by law.

Each party warrants that it has the right to make the disclosures under the Terms of Use. NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THE TERMS OF USE WHATSOEVER. The parties understand that no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by either party. Further, neither party is under any obligation under the Terms of Use to disclose any Confidential Information it chooses not to disclose. Neither Party hereto shall have any liability to the other party nor to the other party’s representatives resulting from any use of the Confidential Information except with respect to disclosure of such Confidential Information in violation of the Terms of Use.

Although the restrictions contained in the Terms of Use are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten, or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten, or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Terms of Use will be enforced as if such provision was not included.

All obligations created by the Terms of Use survive change or termination of the parties’ relationship.