- ACCEPTANCE OF TOU
PLEASE REVIEW THE TOU CAREFULLY. BY CLICKING “I AGREE”, MAKING A PURCHASE THROUGH THE SERVICE, REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOU, DO NOT ACCESS OR USE THE SERVICE, MAKE A PURCHASE THROUGH THE SERVICE, OR CLICK TO INDICATE THAT YOU AGREE TO THE TOU.
THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. PLEASE REVIEW SECTION 20 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you are: (i) over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction.
Whimmark’s website and mobile applications are services for logging, tracking, and sharing sport fishing related information and data.
- GRANT OF RIGHTS; OWNERSHIP
(a) Whimmark grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) access and view pages from the Service for your personal, non-commercial use only; and (ii) print a reasonable number of such pages for your personal, non-commercial use only.
(b) To the extent that the Service provides access to any online software, applications or other similar components, then Whimmark grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in executable, machine-readable, object code form within the online platform provided by Whimmark and only for your personal, non-commercial purposes.
(c) Whimmark makes available mobile apps for access to and use of certain components of the Service (collectively, “Mobile Apps”). Subject to your compliance in all material respects with the terms and conditions of the TOU and, if you access or use the Mobile App on Apple iOS, the usage rules set forth in the iTunes App Store Terms of Service, Whimmark grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Mobile Apps on a personal mobile device that you own and control, in executable, machine-readable, object code form only and solely for your personal, non-commercial purposes. You acknowledge and agree that the Mobile Apps are licensed, not sold, to you for use only under the terms and conditions of the TOU.
(d) All rights granted to you under this TOU are subject to your compliance with the TOU in all material respects. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by Whimmark.
(a) You may browse the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Whimmark reasonably suspects that you have done so, Whimmark may suspend or terminate your account.
(b) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify Whimmark immediately of any unauthorized use of your account or password or any other similar breach of security.
- FEES AND MEMBERSHIPS; CANCELLATION
(a) You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Service. Some features of the Service are free to use, but fees may apply for memberships, premium features and other components. If there is a fee listed for any portion of the Service, by accessing or using that portion, you agree to pay the fee.
(b) If you make an in-app purchase in a Mobile App, the applicable fee may be denominated in your local currency in the iTunes App Store (http://itunes.apple.com), Google Play Store (https://play.google.com/store/apps) or any other applicable app store through which you obtain the Mobile App (each, an “App Store”). The App Store collects the applicable fee from you on your device. You should consult the App Store to understand its sales terms and determine whether the fee includes all applicable taxes, currency exchange settlements and other charges. You are solely responsible for paying all such taxes, fees and other charges. Whimmark relies on the App Store to collect fees and to report on the status of accounts. Your access to the Service may be suspended or terminated if you do not make payment on time or in full. In-app purchases are managed by the App Store directly. Whimmark does not have the ability to manage any aspect of your in-app purchases on your behalf, including, but not limited to, initiating, canceling or refunding purchases.
(c) If you sign up for a membership, your membership will automatically renew at the conclusion of the then-current term unless you turn off auto-renewal at least twenty-four (24) hours before the conclusion of the then-current term. Uninstalling a Mobile App will not automatically cancel your membership or account or turn off auto-renewal, and you may continue to access the Service and your account after uninstalling a Mobile App, such as through the Site. You must cancel your membership or turn off auto-renewal to end recurring charges. If you uninstall a Mobile App without canceling your membership or turning off auto-renewal, the recurring charges for your membership will continue. Whimmark reserves the right to change membership fees at any time and Whimmark may begin charging for products, content or services that it currently offers for free. Whimmark will notify you at least 30 days in advance of your auto-renewal if the price of your membership fee has increased.
(d) TO CANCEL YOUR MOBILE APP SUBSCRIPTION, PLEASE TAKE THE FOLLOWING STEPS: For the Google Play Store, visit Account, then > Subscriptions. For the Apple App Store, visit Settings, then > iTunes & App Store, then > tap “Apple ID: (your Apple ID) at top of screen, then > View Apple ID, then > Subscriptions. For more information on managing your Apple App Store subscriptions, please visit: https://support.apple.com/en-us/HT202039 (as may be updated by Apple from time to time). Canceling a membership or turning off auto-renewal will not entitle you to a refund of any fees already paid, and previously charged fees will not be pro-rated based on cancellation date. Cancellation is effective at the conclusion of the then-current term. We are unable to process any returns or exchanges for purchases via the App Stores, you must abide by the specific return policies of the App Store.
(e) If you purchase your membership directly from Whimmark on an Whimmark website, please take the following steps to turn off auto-renewal of your membership: (i) sign into your account and navigate to “My Memberships” on the left side of the screen; (ii) find the membership you would like to cancel, and navigate to the “Cancel My Membership” button; and (iii) follow the instructions and prompts to complete the cancellation process. If you have any questions about the status of your membership, please contact us at: support@Whim-tech.com.
- RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, maps, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Whimmark, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Whimmark, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
(b) You acknowledge and agree that Whimmark has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Whimmark reserves the right in its sole discretion to pre-screen, refuse, or remove any Content. Without limiting the generality of the foregoing sentence, Whimmark shall have the right to remove any Content that violates the TOU or that it deems objectionable.
(c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any copyright, trademark, right of privacy, right of publicity or any other right of any other party.
- RIGHTS TO CONTENT; COPYRIGHT AND TRADEMARK NOTICE
(a) Whimmark does not claim ownership of Your Content. However, you grant Whimmark and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) in connection with the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b) Except with respect to Your Content, you acknowledge and agree that Whimmark and its licensors own all rights, title and interest (including, but not limited to, all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. The Whimmark logos and trademarks referenced in the Service are the trademarks of Whimmark and its affiliates. Any other company names, product names, service names and logos referenced in the Service may be the trademarks of their respective owners. Whimmark reserves all rights not expressly granted to you.
(c) Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOU; (ii) except as expressly permitted by applicable law, reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of, any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Whimmark; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
- USER CONDUCT
In connection with your access to or use of the Service, you shall not:
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) impersonate any person or entity, including, but not limited to, Whimmark personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) act in a manner that negatively affects the ability of other users to access or use the Service;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including, but not limited to, your user account and password; or
(i) violate any applicable local, state, provincial, federal or international law or regulation.
If you elect to provide or make available to Whimmark any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), Whimmark shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
- OUR COMMERCE POLICIES
- Commerce posts must not violate our Community Standards
- Illegal prescription drugs
- Weapons, ammunition, or explosives
- Adult products or services
- Health products
- Gambling services
- Fraudulent, misleading, or offensive products or services
- Subscription products
- Real, virtual, or fake currency
- No commercial intent
- Property that is not rightfully yours to sell
- DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third-party. You agree that Whimmark shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
- LINKS AND EXTERNAL MATERIALS
- MODIFICATIONS TO THE SERVICE; UPDATES
(a) Whimmark reserves the right at any time to modify, suspend or discontinue the Service (or any portion thereof) with or without notice, and Whimmark shall not be liable to you or to any third party for any such modification, suspension or discontinuance; provided, however, that in the event of discontinuance, you will be entitled to receive a pro-rated refund for the unused portion of any active subscription.
(b) Whimmark may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service (“Updates”). Whimmark may develop Updates that require installation by you before you continue to access or use the Service. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
- CHANGES TO THE TOU
Whimmark reserves the right to change the TOU at any time upon notice to you. Whimmark may give notice by making the updated TOU available in the Service or by any other reasonable means. You can access and review the most current version of the TOU at any time at: https://www.Whimmark.com/tou. The updated TOU are binding on you as of the next date that you use the Service after the date of updated TOU. If you do not agree to the updated TOU, you must stop using the Service. Your continued use of the Service after the effective date posted at the top of the TOU will constitute your acceptance of the updated TOU.
You will indemnify and hold Whimmark and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Whimmark Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including, but not limited to, reasonable attorneys’ fees, resulting from or arising out of your: (a) access to or use of the Service; (b) violation of the TOU or any law or regulation; or (c) violation of any rights of another party.
- DISCLAIMER OF WARRANTIES
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WHIMMARK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WHIMMARK PARTIES MAKE NO WARRANTY AND PROVIDE NO CONDITIONS THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION. ALWAYS OBEY PROPERTY LINE POSTINGS AND USE COMMON SENSE IN VISUALLY VERIFYING BOUNDARIES, ROADS AND PATHS. DO NOT USE THE SERVICE FOR ANY PURPOSE REQUIRING PRECISE DIRECTION, DISTANCE OR LOCATION.
(d) THE CONTENT MADE AVAILABLE THROUGH THE SERVICE DOES NOT CONSTITUTE A LEGAL SURVEY. OWNERSHIP OF LAND, WHETHER PUBLIC OR PRIVATE, MAY CHANGE AT ANY TIME. TO OBTAIN THE DEFINITIVE DESCRIPTION OF REAL PROPERTY, CONSULT THE DEED OR OTHER OFFICIAL RECORD MAINTAINED BY THE APPLICABLE GOVERNMENTAL AUTHORITY.
(e) WE DO NOT WARRANT OR GUARANTEE THAT THE TECHNOLOGY USED TO MEASURE FISH OR ANY OTHER ASPECT OFFERED THROUGH THE SERVICE IS ACCURATE OR RELIABLE IN ANY WAY. EACH STATE OR LOCAL JURISDICTION MAY HAVE SEPARATE AND DISTINCT LAWS REGARDING THE LEGAL SIZE LIMITS FOR FISH YOU CATCH AND KEEP. BY USING THE SERVICE, YOU UNDERSTAND AND AGREE THAT WE CANNOT WARRANT THAT OUR TECHNOLOGY IS ACCURATE IN ANY WAY. YOU SHOULD NOT RELY SOLELY ON OUR TECHNOLOGY IN YOUR COMPLIANCE WITH APPLICABLE LAWS AND YOU DO SO AT YOUR OWN RISK.
- LIMITATION OF LIABILITY
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT WHIMMARK PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF WHIMMARK PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHIMMARK PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO WHIMMARK FOR ACCESS TO THE SERVICE (OR PORTION THEREOF) AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE MAY INVOLVE KNOWN AND UNANTICIPATED RISKS THAT COULD RESULT IN PROPERTY DAMAGE, BODILY INJURY OR DEATH, INCLUDING, BUT NOT LIMITED TO, RISKS THAT MAY ARISE FROM THE ACTS OF OTHERS AND OTHER RISKS BEYOND THE CONTROL OF WHIMMARK. YOU ASSUME ALL SUCH RISKS AND ALL RELATED DAMAGES AND LOSSES, WHETHER CAUSED IN WHOLE OR IN PARTY BY ANY ACT OR OMISSION OF WHIMMARK PARTIES. YOU VOLUNTARILY RELEASE, WAIVE, DISCHARGE AND HOLD HARMLESS WHIMMARK PARTIES FROM ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION FOR PROPERTY DAMAGE, BODILY INJURY, WRONGFUL DEATH, LOSS OF SERVICES OR OTHER CLAIMS ARISING FROM OR RELATING TO YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE. The limitation of liability set out in this section 17 does not apply to liability resulting from WHIMMARK PARTIES’ gross negligence or willful misconduct.
- INDEPENDENT REMEDIES
The exclusion of damages under Section 16 is independent of your exclusive remedy in Section 17 and it survives even if the exclusive remedy fails of its essential purpose or otherwise is deemed unenforceable. Each of the limitations of liability in Sections 15 and 16 apply without regard to whether loss, liability, or damage arise from (a) breach of contract, (b) breach of warranty, (c) fault or tort, including negligence and misrepresentation, (d) strict liability or (e) any other cause of action, to the extent the exclusions and limitations are not prohibited by applicable law.
- TERMINATION AND SURVIVAL
In the event that you violate the TOU: (a) all rights granted to you under the TOU shall terminate immediately, with or without notice; (b) you must immediately cease using the Service; and (c) Whimmark, in its sole discretion, may remove and discard Your Content. Upon termination of the TOU, all rights granted to you under the TOU shall immediately terminate, but all other provisions shall survive termination.
- GOVERNING LAW
The TOU shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
- BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, including (as appropriate) its Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, except that Whimmark will pay all arbitration administrative or filing fees, including the arbitrator fees (other than arbitrator fees up to the amount of the then-applicable fee for filing a civil action in federal court in the judicial district where you live in any dispute where you assert a claim against Whimmark, unless you demonstrate to the arbitrator that you would be entitled to file that civil action in federal court without payment of the then-applicable fee). The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that the hearing will be conducted in the largest city in your state within 100 miles of where you live. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR ARBITRATION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HARRIS COUNTY, TEXAS, OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN A COURT OF COMPETENT JURISDICTION IN __ HARRIS COUNTY, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Whimmark may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth above.
- LEGAL COMPLIANCE
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, listed in the Area Control List under Canada’s Export and Import Permits Act, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List.
- U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
- NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOU, there shall be no third-party beneficiaries to the TOU.
- PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Whimmark’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Whimmark’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
Whim Technologies LLC
Houston, TX 77024
Whimmark may give you all notices (including legal process) that Whimmark is required to give by any lawful method, including by making notice available through the Service or by sending it to any email or mailing address that you provide to Whimmark. You acknowledge that if you do not provide Whimmark with current and accurate contact information, Whimmark may not be able to contact you. You agree to send Whimmark notice by mailing it to the following address: 12219 Mossycup Houston TX 77024.
- GENERAL PROVISIONS
The TOU constitutes the entire agreement between you and Whimmark concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Whimmark with respect to such subject matter. You may not assign or delegate any right or obligation under the TOU without the prior written consent of Whimmark. The failure of Whimmark to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by Whimmark hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay. If you are using the Mobile App on Apple iOS, the parties acknowledge that the TOU is concluded between you and Whimmark only, and not with Apple, and Apple is not responsible for the Mobile App and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Apps. Whimmark, not Apple, is responsible for addressing any claims from you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including, but not limited to, product liability claims, any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Whimmark, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to the Mobile App. Apple and Apple’s subsidiaries are third-party beneficiaries of the TOU, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the TOU against you as a third-party beneficiary hereof.
- CONTACT INFORMATION
If you have questions, concerns or suggestions regarding the Service, your account or the TOU, please contact us at: firstname.lastname@example.org.