PLEASE READ THESE CUSTOMER TERMS CAREFULLY BEFORE USING THE SERVICES OFFERED BY HELLO FLEXY INC (“WHIPPY”), LOCATED AT 10520 WILSHIRE BLVD., LOS ANGELES, CA 90024, USA, AND ITS SUBSIDIARIES OR AFFILIATES INVOLVED IN PROVIDING THE SERVICES. BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH WHIPPY WHICH REFERENCE THESE CUSTOMER TERMS (EACH, AN “ORDER FORM”), OR BY CLICKING A BUTTON OR CHECKBOX ON YOUR COMPUTER SCREEN INDICATING YOUR ACCEPTANCE, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE CUSTOMER TERMS (TOGETHER WITH ALL ORDER FORMS AND EXHIBITS, THE “AGREEMENT”). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” OR “YOU” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA WHIPPY’S ONLINE PROCESS AND WHICH IS ACCEPTED BY WHIPPY SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THESE CUSTOMER TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT IS GOVERNED BY THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER OF THE TERMS OF SERVICE, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH WHIPPY. PLEASE READ IT CAREFULLY.
1. Access and Use. Subject to these Customer Terms, WHIPPY grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the commercial offerings, platforms, and/or products provided by WHIPPY through and on its website (collectively, “Services”) solely during the Term by the Authorized Users for Customer’s internal use in compliance with the Documentation. Services are subject to change or enhancement from time to time at WHIPPY’s sole discretion. While WHIPPY uses commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, WHIPPY reserves the right to suspend access to the Services: (i) for scheduled or emergency maintenance, (ii) if an Authorized User is in breach of the Agreement, (iii) if WHIPPY determines, in its sole discretion, that (A) there is a threat or attack on any WHIPPY IP; (B) an Authorized User’s use of WHIPPY IP disrupts or poses a security risk to WHIPPY IP or to any other WHIPPY customer or vendor; (C) applicable law requires; (E) if WHIPPY receives any notice or claim that any Customer Content or Customer’s activities, may infringe or violate applicable law and/or the rights of a third party; (iv) any vendor of WHIPPY has suspended or terminated WHIPPY’s access to or use of any third-party services or products required to enable Customer to access the Services; and (v) any cause beyond WHIPPY’s reasonable control, including without limitation, the elements, fire, flood, severe weather, earthquake, vandalism, power, network or internet failure, acts of God, acts of war or terrorism, strikes lock-outs or labor disruptions, acts or restraints of any government (any of the foregoing, a “Service Suspension”). WHIPPY shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. WHIPPY will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Notwithstanding any other provision of this Agreement, WHIPPY may remove Content, including Customer Content, from the Services at any time and for any reason, with or without notice to Customer. WHIPPY is not required to provide any services other than those expressly described and paid for by Customer pursuant to an Order Form. However, if WHIPPY does provide an additional service beyond those in an Order Form (including, without limitation, excess Whippy Credits, capacity, Authorized Users, hours, overages, etc.), Customer will pay WHIPPY at its then-current rates therefor.
2. Intellectual Property. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to any part or component of the Service (collectively, “WHIPPY IP”). Notwithstanding anything else, WHIPPY may use Customer Content to fulfill its obligations and exercise its rights under this Agreement.
3. Customer Responsibilities. Customer shall at all times comply with (and ensure each Authorized User’s compliance with) the Agreement and the Terms of Service. Customer will cooperate with WHIPPY by making available such personnel and information as may be reasonably required and taking such other actions as WHIPPY may reasonably request. Customer will designate an employee who will be provide prompt responses to WHIPPY in connection with this Agreement (“Primary Contact”).
4. Content. Customer is solely and exclusively responsible for its (including its Authorized Users’) use of the Services, including but not limited to, Customer Content. Customer must ensure that its use of the Services complies with all applicable laws, carrier requirements and standards, and third party rights, including but not limited to, those relating to privacy, data protection, consumer protection, intellectual property, network or carrier rules, etc. WHIPPY shall not be responsible or liable to Customer (or any third party) for any change in the Service required due to carrier(s) (or their requirements), including without limitation, reductions in speed, rate, quantity/quality of messages, capacity, or otherwise. WHIPPY also does not guarantee that any features of the Service will ensure Customer’s responsibility to comply with any opt out requirements, and WHIPPY shall not be responsible or liable for any such failure, including without limitation, refunds, costs, charges, or penalties. Customer acknowledges that WHIPPY is not liable for any errors or omissions in the Customer Content and agrees that WHIPPY has no duty or obligation to screen, filter, regulate, or update any Customer Content. WHIPPY is not responsible in any way for any matter in connection with Customer’s interactions with third parties, including other users, websites or services not owned or controlled by WHIPPY, even though the Services may allow such interactions and/or provide links or connections thereto. Any exchange of data or other interaction between Customer and a third party is solely between Customer and such third party. WHIPPY has no control over, and assumes no responsibility for, the WHIPPY shall not be responsible or liable for any loss or damage of any sort incurred as the result of Customer’s dealings with any third party through Customer’s use of the Services (including, without limitation, any downgrade or penalty on Customer’s rating with carriers). If there is a legal action with respect to, or a dispute between, Customer and third parties or any governmental authority, Customer agrees that WHIPPY is under no obligation to become involved, and Customer releases WHIPPY, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or related to such actions or disputes. Customer agrees to collaborate with WHIPPY on developing joint marketing material, such as case-study, testimonials, social mentions or press releases. Client grants WHIPPY permission to use its name in WHIPPY’s marketing materials and to publish its name, trademark and/or logo on the WHIPPY website, solely for the purpose of identifying Client as an WHIPPY’s client. Client retains the ability to request removal of the logo at any time.
5. Fees; Payment. Each Service must first be paid for by Customer at the prices, rates, and/or fees applicable or each such Service, along with any fees, costs, or charges required by the applicable third party service provider (collectively, “Fees”). For access to any Service, Customer must provide WHIPPY with authorized billing account information, along with any related Service-dependent information WHIPPY may require (e.g., number of Authorized Users, Whippy Credits range and/or capacity, etc.). By providing such information, Customer (individually or on behalf of the organization or business entity) is agreeing to pay and authorizing WHIPPY to save and automatically charge Customer’s credit card (and/or other payment account or information provided) all amounts for due and for future Fees due to WHIPPY for the Services, overages (excessive use), purchases of Customer, taxes, and any third party (e.g., carrier, telecommunications, mobile network, international and/or long distance charges, etc.) costs, tariffs, or charges, all of which are Customer’s sole responsibility and which WHIPPY reserves the right to pass through to and so collect from Customer. Charges are neither refundable nor prorated upon cancellation or termination. There are no carryovers (or refunds) for un-used capacity (such as, SMS Whippy Credits Messages) or benefits from any month(s). All payments must be made in US dollars. Unless WHIPPY specifies otherwise, subscriptions and accounts for each Service are automatically billed at least on a monthly basis (without the need of any WHIPPY interface, Order Form or transaction). WHIPPY reserves the right to change or update any of the terms and features of any subscription or Service (e.g., the amount, price, and/or structure of Fees; usage, capacity, or Whippy Credits ranges; etc.). Such changes will be notified to Customer via posting on the applicable page of WHIPPY’s website, displayed on WHIPPY's pricing page (pricing.whippy.ai) and/or direct written notice or email to Customer, and the change(s) take effect automatically on the first day of the immediately following month of Service (unless WHIPPY specifies otherwise). Customer’s use or access to the Services thereafter constitutes Customer’s affirmative acceptance of any such change. Customer will be charged interest of 1.0% per month calculated daily and compounded monthly, or the highest rate permitted under applicable law, for any late/non-payments. Customer will also be liable for costs incurred by WHIPPY in collecting any late payments or interest (such as, attorneys’ fees, court costs, and collection agency fees). WHIPPY may also suspend Customer access to the Services until all amounts are paid in full.
6. Disclaimers. Customer accesses the Services and all Content provided on or through the Services at Customer’s own risk. No Content, or any other information, summaries, or documents received from WHIPPY can or should be construed as professional advice of any kind (including, without limitation, business, employment, investment, accounting, tax, and/or legal advice).
7. Indemnification by Customer. Customer shall indemnify, hold harmless, and, at WHIPPY’s option, defend WHIPPY from and against any and all any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) in connection with Customer Content or Customer’s use of any Service, including without limitation, the breach, negligence, willful misconduct, violation of law or third party rights, or other act or omission of Customer (or its Authorized User). Customer may not settle any third-party claim, suit, action, or proceeding against WHIPPY unless WHIPPY consents to such settlement. WHIPPY will have the right, at its option, to defend itself against any such proceeding or to participate in the defense thereof by counsel of its own choice.
8. Liability Limit. IN NO EVENT WILL WHIPPY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY (WHETHER BY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, AND OTHERWISE) FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WHIPPY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. FURTHER, IN NO EVENT WILL WHIPPY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY (WHETHER BY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, AND OTHERWISE) EXCEED THE LIABILITY AMOUNT SPECIFIED IN THE TERMS OF SERVICE (IF NONE IS STATED IN THE TERMS OF SERVICE, THEN LIABILITY SHALL NOT EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100) OR THE AMOUNT CUSTOMER PAID WHIPPY IN THE PRECEDING TWELVE (12) MONTHS).
9. Term; Termination. Unless terminated earlier pursuant to this Agreement’s express provisions: (a) the initial term of each Service (and its applicable Order Form) begins on the date of such Order Form and continues in effect for one (1) year (the “Initial Term”), and (b) the Initial Term will automatically renew annually for additional 1-year periods (except as otherwise agreed by WHIPPY), unless either party delivers written notice of nonrenewal for each Order Form at least 30 days prior to the expiration of the then-current Term (each a “Renewal Term” and, together with the Initial Term, the “Term”). This Agreement enters into full force and Effective Date and shall continue until the expiry, non-renewal, or termination of all Order Forms. WHIPPY may terminate this Agreement at any time for any reason upon thirty (30) days’ notice to Customer. Upon any expiration, non-renewal, or termination, Customer shall (1) immediately discontinue use of the Services and WHIPPY IP, (2) delete, destroy, or return all copies of WHIPPY IP, and (3) if requested by WHIPPY, certify in writing that all WHIPPY IP has been deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Earlier termination or cancellation of Services by Customer will be subject to additional charges or fees. All provisions required to give effect to any rights and obligations accruing prior to and through termination, non-renewal, or expiration of this Agreement shall survive to allow enforcement thereof.
10. Miscellaneous. This Agreement, which incorporates the Terms of Service, represents the entire agreement between Customer and WHIPPY with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties (whether written, oral, or electronic) between Customer and WHIPPY with respect thereto. Except as otherwise provided in this Agreement, this Agreement may be amended only by a writing executed by both parties. Customer may not assign any of its rights or obligations hereunder without WHIPPY’s prior written consent. WHIPPY may assign any rights and obligations hereunder without consent, including but not limited to, a successor-in-interest in connection with a sale of substantially all of its business relating to this Agreement, affiliates, and/or subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. The delay or omission by WHIPPY to exercise any right, power or remedy under this Agreement shall not impair any such right, power or remedy of WHIPPY nor shall it be construed to be a waiver of any breach or default by Customer, or an acquiescence by WHIPPY; nor shall any waiver by WHIPPY of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of WHIPPY of any breach or default under this Agreement, or any waiver as to any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to WHIPPY, shall be cumulative and not alternative. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
11. Definitions. The following capitalized terms have the described meanings: (A) “Authorized Users” means Customer’s employees authorized by Customer to access and use the Services under the rights granted to Customer by this Agreement, and for whom access to the Services has been purchased by Customer via Order Form(s). (B) “Content” means materials including, but not limited to, text, graphics, data, articles, photos, images, illustrations, information, and other content that are submitted, displayed, available on, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services. (C) “Customer Content” means any Content that is submitted, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services by or on behalf of Customer or Authorized User(s). (D) “Documentation” means WHIPPY’s user manuals, websites/pages, and guides relating to the Services, as may be provided or made available by WHIPPY.