Terms of Service
Welcome, and thank you for your interest in whirr.io (“Whirr,” “us” or “we”) and our services made available through the website (the “Website” or the “Site”) and any online applications or mobile application and tools (collectively, the “Apps,” together with the Site, the “Service”). Unless otherwise specified, all references to the Services include the services available through the Whirr Website or mobile application (the “App”), as well as any software that Whirr provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you and Whirr regarding your use of the Service. Whirr.io is owned and operated by Whirr Systems Incorporated, a Delaware State corporation.
Please read the following Terms of Service (“Terms”) carefully before accessing or using any of the Service. Each time you access or use the Service, you agree to be bound by these Terms. If you do not agree to be bound by all of these Terms, you may not access or use the Service. In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.
Your Compliance with this Agreement
- You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit and retrieve content and information using our Services.
Eligibility for Our Service
By using our Services, you represent that you are at least 18 years old. Persons who are at least 13 years of age but under the age of 18 may only use our Services with legal parental or guardian consent. Accordingly, you agree that you are at least 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms.
Description of Service
- Whirr is a world leading provider of mobile applications (“Whirr Apps”) to individual businesses and to our strategic business partners that rebrand the Whirr Apps for their clients (“White Label Partners”). Our approach involves creating aesthetically pleasing and technologically advanced, purpose built native apps, designed specifically for respective operating platforms and ensuring an exceptional user experience.
- The Services include (i) Whirr’s systems, procedures, processes and technologies, and (ii) any software, applications, data, reports, and other content made available by or on behalf of Whirr. Any modifications and new features added to the Service are also subject to this Agreement.
- Whirr reserves the right to modify or discontinue the Service (or any Service plan) or any feature or functionality thereof at any time without notice to you or recourse by you for any refund. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Whirr.
Your Access and Use of our Services
- You understand that Whirr may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the App.
- Our Services may have “publicly accessible areas” such as message boards, forums, communities other features that allow users to post User Content that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that Whirr shall not, under any circumstances, be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content made available by the Services in any manner or method.
- The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive Service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
- Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
- Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.
- As between Whirr and you, Whirr or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Whirr.
Intellectual Property Rights
- Whirr’s names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”), are owned by Whirr. You may not use the Proprietary Marks without our prior written permission.
- We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.
- The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, “Our Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
- We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the “Collective Work”).
- All software used on or within our Services or to create any Whirr Apps is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
- You are solely responsible for any damages resulting from your infringement of our or any third-party’s intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
Use of Our Content
- We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.
- You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.
- Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of Our Content and the Collective Work as permitted by this Agreement, is permitted by you without our prior written permission.
Accounts and Registration
- To access some features of the Service you will be required to register for an account. When you register for an account, you will be required to provide us with some information about yourself (such as your name, address, e-mail address or other contact information). You may also be required to provide us with information about you, which may be of a confidential nature and may include personal identifying information and/or financial information (“Your Information”).
- If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
- Keep Your Password Secure. If you have been issued an account by Whirr in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Whirr, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Whirr immediately. Account credentials may be shared with trusted individuals such as employees or agents, but you remain solely responsible for all activity on your account.
- Keep Your Details Accurate. Whirr occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
Business Clients; Fees
- Business clients that wish to have a Whirr App created for them by Whirr are required to pay a one-time setup fee and a monthly or annual subscription fee.
- The annual subscription fee is due and payable at the same time as the initial setup fee. If you select a monthly subscription plan, the monthly subscription fee commences one (1) month following your payment of the initial setup fee.
- The subscription fee (annual or monthly) will be due and payable irrespective of the Whirr App production status and whether or not the Whirr App is live at that point in time.
- All fees payable are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies or duties.
- A failure to pay any subscription fee, or taxes, levies or duties, will delay or prevent the Whirr App from being completed or going live.
White Label Partners; Fees
- White Label Partners that wish to have a Whirr App created for them by Whirr for rebranding to their customers will pay a monthly subscription fee for a designated number of app credits (“App Credits”). Each App Credit is redeemable for a single Whirr App or a single venue in a multi-venue app.
- The total number of App Credits for each White Label Partner is a fixed rolling amount. When a App Credit is used (by submitting an Whirr App to be built) that App Credit is then taken. If that particular app is then cancelled then this will free up the credit again. For illustration purposes, assuming the White Label Partner starts with 15 App Credits; when a White Label Partner submits 3 apps there will then be 3 App Credits used. This means the White Label Partner will have 12 App Credits remaining. When the White Label Partner has gone over their credit allowance their subscription will increase.
- If you exhaust all of your App Credits in any time period, you must pay an “Out of Plan App Fee” for additional App Credits irrespective of the Whirr App status and whether or not the Whirr App is live at that point in time.
- White Label Partners are also required to pay a one-time build fee per Whirr App which is due and payable at the time of submitting an app to the system to be built.
- White label partners are responsible for setting up their own developer accounts with Apple and Android.
- All fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies or duties.
- A failure to pay any subscription fee, taxes, levies or duties, or any Out of Plan App Fee, may result in any of the following actions: (a) a delay or prevention of the Whirr App from being completed or going live, (b) removal of the White Label Partners from access to their dashboard, (c) removal of the White Label Partner’s customer access to their dashboard, and (d) removal of the customers apps from the App Stores.
- Whirr will bill the annual or monthly subscription fee plus any applicable taxes, levies or duties to the payment method you provide to us during registration of your account.
- Late payments and delinquent accounts will be subject to a late fee equal to one percent (1%) of the outstanding amount per month.
- In the event that any payment remains overdue for more than fifteen (15) days, Whirr shall have the right to suspend access to the administrative functions (the dashboard) for all Whirr Apps on your account.
You may elect one of the following subscription plans and billing options:
- A monthly subscription plan (“Monthly Subscription Plan”). The subscription period for the Monthly Subscription Plan will be one month and will automatically renew unless you cancel your Monthly Subscription Plan in accordance with these Terms at least thirty (30) days prior to the renewal date. You will be billed monthly for the Monthly Subscription Plan on or about the same day each month until such time that you cancel your Monthly Subscription Plan.
- An annual subscription plan (“Annual Subscription Plan”). The subscription period for the Annual Subscription Plan will be one year and will automatically renew each year on the anniversary of your Annual Subscription Plan unless you cancel your Annual Subscription Plan in accordance with these Terms at least thirty (30) days prior to your renewal date. You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that you cancel your Annual Subscription Plan. For the avoidance of doubt, please note, you will not be permitted to cancel or downgrade the Whirr Service you have selected until the anniversary of your Annual Subscription Plan. There will be no refunds for Annual Subscription Plan payments. Please be certain you are committing to a one (1) year period if you select the Annual Subscription Plan. If you are not certain, we recommend choosing the Monthly Subscription Plan.
- Plan Changes. If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.
Suspension and Termination of Services
- By You. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within thirty (30) days after you have so notified us in writing; or (b) a refund is required by law. Termination of your account by you must be done in writing by sending an email request to [email protected]
- By Whirr; Refund. Whirr may terminate your Subscription for any reason without notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle.
- By Whirr; No Refund. Whirr may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within thirty (30) days after Whirr has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for thirty (30) days past the due date. Additionally, Whirr may limit or suspend the Services to you if you fail to comply with these Terms, or if you use the Services in a way that causes legal liability to us or disrupts others use of the Services. Whirr may also suspend providing the Services to you if we are investigating suspected misconduct by you. If your Subscription is suspended or terminated under this subsection, you will not be provided with a refund of any payments you have made. Whirr will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action.
Intellectual Property Rights and Content Ownership
- You acknowledge and agree that Whirr owns all right, title and Interest in all of the content supplied by Whirr and included in the Whirr App created for you, including, without limitation, all the digital files, audio files, video, documents, and images contained in, or generated by, the software, the visual design elements, HTML/CSS, and all accompanying data (collectively the “Whirr App Software”), and that the same is deemed to be licensed to you by Whirr, for your l use, but is not licensed for your use to create any derivative apps for personal or commercial use.
- Whirr does not transfer either the title or the intellectual property rights to the Whirr App Software to you and retains full and complete title to the Whirr App Software as well as all intellectual property rights therein.
- You may not sell, redistribute, or reproduce the Whirr App Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Whirr App Software to any other medium.
- You shall not, at any time during or after the expiration or termination of these Terms, assert or claim any interest in, or do anything that may adversely affect the validity of Whirr’s intellectual property rights.
- Whirr makes no claim of ownership to intellectual property rights over the content or material you provide to Whirr for inclusion in the Whirr App. Any content or material you submit to Whirr for inclusion in your Whirr App remains your property.
- By providing the foregoing content or material, you hereby grant to Whirr, and its affiliates, officers, directors, employees, consultants, agents, and representatives, a non-exclusive, worldwide, perpetual right and license (the “License”) to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat such content and material with the understanding that you will not be compensated in any way therefore.
- By providing Whirr with any content and material to be used in the Whirr App created for you, you warrant and represent that you own all rights, including all intellectual property rights, to the content and material or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute the same.
Interruption of Service
- Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
- We reserve the right to suspend or discontinue the availability of our Services and/or any portion or feature of our Services at any time in our sole discretion and without prior notice.
- You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
- If you receive Software (including Whirr App Software) from us, its use is governed in one of two ways: If you’re presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software and the Whirr App Software.
- Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Whirr, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included Software, nor may you reverse engineer or attempt to extract the source code of that Software.
- We may automatically check your version of the Software. We may also automatically download to your device or computer new versions of the Software.
- Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
- The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
Third Party Links, Services and Content
- When you use our Services or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by posting notices on our Services.
- You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Your use of the services includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in application purchases and other financial transaction. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including in application purchases, financial transactions, notices of cancellation, policies, contracts, and applications. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
User Content Rights and Related Responsibilities; License
- “User Content” means, without limitation, any emails, digital files, images, photos, artwork, videos, audio and documents, or other content you upload, transmit or otherwise make available to Whirr and its users via the Services.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
- You agree to use our Services and the Content (whether provided by us or others), as well as any Software provided in connection with the Services, in a manner consistent with all applicable laws and regulations. You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material.
- You are solely responsible for User Content. Whirr may remove or return any of User Content at any time for any reason or for no reason at all. We are not responsible for the accuracy, appropriateness, or legality of User Content.
- Violating the security of our Site is prohibited and may result in criminal and civil liability. Whirr may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or Site or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
Privacy and Your Personal Information
- We respect the intellectual property rights of others. Please notify us bye-mail at [email protected] if you believe that a user of the website or Services has infringed your intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”).
Disclaimers; No Warranties
- OUR CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES INCLUDING WHIRR APPS ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES, THE WHIRR APPS, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES, THE WHIRR APPS, AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
- WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
- WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES. WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY CONTENT, INFORMATION OR MATERIAL.
- YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
- WE MAKE NO REPRESENTATIONS THAT OUR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS. WHEN YOU ACCESS OR USE OUR SERVICES FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
- SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitations of Liability
- IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES OR ANY WHIRR APP; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES OR ANY WHIRR APP FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, WHIRR APP, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
- THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE WEBSITE SERVICE, THE WHIRR APPS, OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE WEBSITE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
- OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
- YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
- You agree that you will be personally responsible for your use of the Service, and you agree to defend, indemnify and hold harmless Whirr and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.
- We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
- If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Whirr and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
- By using the Services, the Site, the App and any Whirr App you release, to the maximum extent allowed by law, Whirr, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of, or any transaction effected through, the Services, the Site, the App and any Whirr App.
- If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Amendments to this Agreement
- We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
- You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
- For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of Delaware, or a United States District Court for the State of Delaware. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with Whirr, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. If Whirr has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
- You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
- Applicable Law. You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
- Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
- Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of Delaware. You and we agree to submit to the personal jurisdiction of the courts located within Delaware for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of Delaware; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of Delaware.
- Whirr is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Whirr receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
- Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Whirr may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. Whirr will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at [email protected]
Last updated: January 1, 2017