Preamble
This Software and Online Services License Agreement ("Agreement") is a legally binding contract between you ("Licensee," "User," "you," or "your") and Whimzi LLC, a Texas limited liability company, with its principal place of business at 5473 Blair Rd Ste 100 No 250421, Dallas, TX 75231 ("Licensor," "Whimzi," "Company," "we," "us," or "our").
This Agreement governs your access to and use of the Whimzi mobile application, website, software, and all related online services, features, content, and functionality (collectively, the "Services").
BY INSTALLING, ACCESSING, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT INSTALL, ACCESS, OR USE THE SERVICES.
Article I: Definitions
1.1 "Content" means all text, graphics, images, photographs, audio, video, data, software code, user interfaces, visual interfaces, and any other materials made available through the Services.
1.2 "Documentation" means any user guides, help files, manuals, or other documentation provided by Licensor relating to the Services.
1.3 "Intellectual Property Rights" means all patents, copyrights, trademarks, trade secrets, and any other proprietary or intellectual property rights recognized under any applicable law.
1.4 "Software" means the Whimzi mobile application, website code, and any associated software, scripts, APIs, libraries, and tools provided by Licensor.
1.5 "User Content" means any content that Licensee submits, posts, uploads, or otherwise makes available through the Services.
1.6 "Feedback" means any suggestions, comments, ideas, or other feedback provided by Licensee to Licensor regarding the Services.
Article II: Grant of License
2.1 License Grant
Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to:
(a) Download, install, and use the Software on compatible devices owned or controlled by Licensee;
(b) Access and use the Services solely for Licensee's personal, non-commercial purposes; and
(c) Access and view the Content and Documentation made available through the Services.
2.2 Scope of License
This license is granted solely for Licensee's personal use. No license is granted for any commercial, business, or enterprise use unless expressly authorized in writing by Licensor.
2.3 License Limitations
The license granted herein is subject to the restrictions set forth in Article IV. Any use of the Services beyond the scope of this license is strictly prohibited and may result in termination of this Agreement and legal action.
2.4 Reservation of Rights
All rights not expressly granted herein are reserved by Licensor. This Agreement does not grant Licensee any rights to use Licensor's trademarks, service marks, logos, or trade names except as expressly permitted.
Article III: Ownership and Intellectual Property
3.1 Licensor Ownership
The Services, including all Software, Content, Documentation, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Licensor or its licensors. Licensee acknowledges that the Services contain valuable trade secrets and proprietary information of Licensor.
3.2 No Transfer of Ownership
This Agreement does not convey to Licensee any ownership interest in or to the Services. Licensee is obtaining only a limited license to use the Services as expressly set forth herein.
3.3 Third-Party Components
The Services may include third-party software components that are subject to separate license terms. Such third-party components are licensed to Licensee under the terms of their respective licenses, which are incorporated herein by reference.
Sound effects used in the Services are obtained from https://www.zapsplat.com and are used under license.
3.4 Feedback
If Licensee provides any Feedback to Licensor, Licensee hereby grants Licensor a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive license to use, reproduce, modify, distribute, publicly display, publicly perform, and otherwise exploit such Feedback for any purpose without compensation or attribution to Licensee.
3.5 User Content License
Licensee retains ownership of User Content. By submitting User Content through the Services, Licensee grants Licensor the licenses set forth in the Terms of Service, which are incorporated herein by reference.
Article IV: Restrictions and Prohibited Uses
4.1 General Restrictions
Licensee shall not, and shall not permit any third party to:
(a) Copy or Reproduce: Copy, reproduce, duplicate, or create copies of the Services, Software, or any portion thereof, except as expressly permitted;
(b) Modify or Adapt: Modify, adapt, alter, translate, or create derivative works based on the Services or Software;
(c) Reverse Engineer: Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
(d) Distribute: Distribute, sublicense, lease, rent, loan, sell, resell, or otherwise transfer the Services or any rights therein to any third party;
(e) Remove Notices: Remove, alter, or obscure any copyright, trademark, or other proprietary notices contained in or on the Services;
(f) Circumvent Security: Bypass, disable, or circumvent any security, access control, or technical protection measures in the Services;
(g) Interfere: Interfere with, disrupt, or create an undue burden on the Services, servers, or networks connected to the Services;
(h) Automated Access: Use any robot, spider, scraper, or other automated means to access the Services without express written permission;
(i) Commercial Use: Use the Services for any commercial purpose without express written authorization from Licensor;
(j) Competitive Use: Use the Services to develop, market, or distribute any product or service that competes with the Services;
(k) Benchmarking: Conduct performance testing, benchmarking, or comparative analysis of the Services for publication or competitive purposes without express written consent;
(l) Data Mining: Engage in data mining, data harvesting, or data extraction activities on or through the Services; or
(m) Illegal Use: Use the Services for any purpose that is unlawful, fraudulent, harmful, or in violation of any applicable law or regulation.
4.2 Compliance with Laws
Licensee shall use the Services in compliance with all applicable federal, state, and local laws, rules, and regulations, including but not limited to laws regarding data privacy, intellectual property, and electronic communications.
4.3 Geographic Restrictions
The Services are intended for use exclusively within the United States of America. Licensee represents and warrants that Licensee is located in the United States when accessing the Services.
Article V: User Accounts
5.1 Account Registration
Access to certain features of the Services requires the creation of a user account. Licensee agrees to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.
5.2 Account Security
Licensee is solely responsible for:
(a) Maintaining the confidentiality of account credentials;
(b) Restricting access to Licensee's devices and accounts;
(c) All activities that occur under Licensee's account; and
(d) Promptly notifying Licensor of any unauthorized use of Licensee's account.
5.3 Account Termination
Licensor reserves the right to suspend, disable, or terminate Licensee's account at any time, with or without cause, and with or without notice, in Licensor's sole discretion.
Article VI: Subscription Fees and Payments
6.1 Free and Paid Features
The Services may include both free and paid features. Access to certain premium features may require payment of subscription fees.
6.2 Payment Terms
If Licensee subscribes to paid features:
(a) Licensee agrees to pay all applicable fees as described at the time of purchase;
(b) All fees are non-refundable except as expressly set forth herein or as required by law;
(c) Licensor may modify pricing upon reasonable notice to Licensee; and
(d) Failure to pay fees may result in suspension or termination of access to paid features.
6.3 Taxes
Licensee is responsible for all applicable taxes, levies, or duties imposed by taxing authorities with respect to the Services, excluding taxes based on Licensor's net income.
6.4 Third-Party Payment Processors
Payments may be processed through third-party payment processors (e.g., Apple App Store, Google Play Store). Such transactions are subject to the terms and conditions of those third parties.
Article VII: Service Availability and Modifications
7.1 Availability
Licensor shall use commercially reasonable efforts to make the Services available. However, Licensor does not guarantee uninterrupted, timely, secure, or error-free access to the Services.
7.2 Scheduled Maintenance
Licensor may perform scheduled maintenance on the Services, which may result in temporary unavailability. Licensor will endeavor to provide advance notice of scheduled maintenance when practicable.
7.3 Modifications
Licensor reserves the right, at any time and from time to time, to:
(a) Modify, update, or discontinue the Services or any features thereof;
(b) Release new versions of the Software; and
(c) Change the terms and conditions of this Agreement.
7.4 No Liability for Modifications
Licensor shall not be liable to Licensee or any third party for any modification, suspension, or discontinuation of the Services.
Article VIII: Data and Privacy
8.1 Privacy Policy
Licensee's use of the Services is subject to Licensor's Privacy Policy, which is incorporated herein by reference. By using the Services, Licensee consents to the collection, use, and disclosure of information as described in the Privacy Policy.
8.2 Data Processing
Licensee acknowledges and agrees that Licensor may process personal data and other information in accordance with the Privacy Policy and applicable law.
8.3 User Content
Licensee retains ownership of User Content. Licensor's rights to User Content are set forth in the Terms of Service.
8.4 Analytics
Licensor may collect and use aggregated, anonymized, or de-identified data derived from Licensee's use of the Services for analytics, research, and service improvement purposes.
Article IX: Third-Party Services and Content
9.1 Third-Party Services
The Services may integrate with or provide links to third-party websites, applications, or services. Licensee's use of third-party services is subject to the terms and conditions of those third parties.
9.2 Third-Party Content
Third-party content may be made available through the Services. Licensor does not control, endorse, or assume responsibility for any third-party content.
9.3 Disclaimer
LICENSOR IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICES OR CONTENT, INCLUDING THEIR ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, LEGALITY, DECENCY, QUALITY, OR ANY OTHER ASPECT THEREOF.
Article X: Disclaimer of Warranties
10.1 "As Is" Disclaimer
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
10.2 Disclaimer of Implied Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO:
(a) IMPLIED WARRANTIES OF MERCHANTABILITY;
(b) IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE;
(c) IMPLIED WARRANTIES OF TITLE;
(d) IMPLIED WARRANTIES OF NON-INFRINGEMENT; AND
(e) IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10.3 No Warranty of Results
LICENSOR DOES NOT WARRANT THAT:
(a) THE SERVICES WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS;
(b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
(c) THE RESULTS OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE;
(d) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR
(e) THE SERVICES WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
10.4 Assumption of Risk
LICENSEE ASSUMES ALL RISK FOR THE USE OF THE SERVICES. LICENSEE'S USE OF THE SERVICES IS AT LICENSEE'S SOLE RISK.
Article XI: Limitation of Liability
11.1 Exclusion of Consequential Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY:
(a) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES;
(b) DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, OR DATA;
(c) BUSINESS INTERRUPTION DAMAGES;
(d) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR
(e) ANY OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES,
REGARDLESS OF THE THEORY OF LIABILITY (WHETHER CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Cap on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES SHALL NOT EXCEED THE GREATER OF:
(a) ONE HUNDRED DOLLARS ($100.00 USD); OR
(b) THE TOTAL AMOUNTS PAID BY LICENSEE TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
11.3 Essential Purpose
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE XI ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LICENSOR AND LICENSEE. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
11.4 Jurisdictional Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IN SUCH JURISDICTIONS, THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Article XII: Indemnification
12.1 Indemnification by Licensee
Licensee agrees to defend, indemnify, and hold harmless Licensor and its affiliates, directors, officers, employees, agents, suppliers, and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees and costs) arising from or related to:
(a) Licensee's access to or use of the Services;
(b) Licensee's violation of this Agreement;
(c) Licensee's violation of any law or regulation;
(d) Licensee's violation of any third-party right, including any intellectual property, privacy, or proprietary right;
(e) Any User Content submitted by Licensee; or
(f) Any claim that Licensee's User Content caused damage to a third party.
12.2 Indemnification Procedure
Licensor shall provide Licensee with prompt written notice of any claim subject to indemnification. Licensee shall have the right to control the defense of such claim, provided that Licensee shall not settle any claim without Licensor's prior written consent if such settlement would impose any obligation on Licensor or admit any liability on behalf of Licensor.
12.3 Survival
This indemnification obligation shall survive the termination or expiration of this Agreement.
Article XIII: Term and Termination
13.1 Term
This Agreement is effective as of the date Licensee first accesses or uses the Services and shall continue until terminated in accordance with this Article XIII.
13.2 Termination by Licensee
Licensee may terminate this Agreement at any time by:
(a) Deleting Licensee's account through the Services; and
(b) Ceasing all use of the Services.
13.3 Termination by Licensor
Licensor may suspend or terminate this Agreement and Licensee's access to the Services at any time, with or without cause, and with or without notice, including but not limited to:
(a) Breach of this Agreement by Licensee;
(b) Request by law enforcement or government agency;
(c) Discontinuation or material modification of the Services;
(d) Unexpected technical or security issues; or
(e) Extended periods of inactivity.
13.4 Effect of Termination
Upon termination of this Agreement:
(a) All rights and licenses granted to Licensee shall immediately terminate;
(b) Licensee shall immediately cease all use of the Services;
(c) Licensor may delete Licensee's account and User Content; and
(d) The following Articles shall survive termination: III (Ownership), IV (Restrictions), X (Disclaimers), XI (Limitation of Liability), XII (Indemnification), XIV (Dispute Resolution), and XV (General Provisions).
13.5 No Refund
Unless otherwise required by applicable law, termination of this Agreement shall not entitle Licensee to any refund of fees paid.
Article XIV: Dispute Resolution
14.1 Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles.
14.2 Jurisdiction and Venue
Subject to Section 14.3, Licensee agrees that any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Dallas County, Texas. Licensee hereby consents to the personal jurisdiction and venue of such courts and waives any objection based on inconvenient forum.
14.3 Informal Resolution
Before initiating any formal dispute resolution proceeding, Licensee agrees to first attempt to resolve any dispute informally by contacting Licensor at [email protected]. Licensor will attempt to resolve the dispute informally by contacting Licensee via email. If a dispute is not resolved within thirty (30) days of submission, either party may proceed to formal dispute resolution.
14.4 Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14.5 Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE AGREES THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
Article XV: General Provisions
15.1 Entire Agreement
This Agreement, together with the Terms of Service, Privacy Policy, and any other legal notices or agreements published by Licensor, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written.
15.2 Severability
If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the remaining provisions shall continue in full force and effect.
15.3 Waiver
No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving party. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof.
15.4 Assignment
Licensee may not assign, transfer, or delegate this Agreement or any rights or obligations hereunder without the prior written consent of Licensor. Licensor may freely assign this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
15.5 Notices
All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given:
(a) When delivered personally;
(b) Upon receipt of electronic mail to the email address associated with Licensee's account (for notices to Licensee) or to [email protected] (for notices to Licensor); or
(c) Three (3) business days after being sent by certified mail, return receipt requested, to the addresses set forth herein.
15.6 Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, epidemics, pandemics, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials.
15.7 Independent Contractors
The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.
15.8 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein shall confer any rights upon any third party.
15.9 Headings
The headings in this Agreement are for convenience only and shall have no legal or contractual effect.
15.10 Construction
This Agreement shall be construed without regard to any presumption against the party causing it to be drafted.
15.11 Export Compliance
Licensee shall comply with all applicable export and re-export control laws and regulations of the United States and other applicable jurisdictions.
15.12 U.S. Government End Users
The Services are "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the U.S. Government or any contractor therefor, Licensee receives only those rights with respect to the Services as are granted to all other end users under license, in accordance with 48 C.F.R. § 227.7202 and 48 C.F.R. § 12.212.
Article XVI: Updates to Agreement
Licensor reserves the right to modify this Agreement at any time. Licensor will provide notice of material changes through the Services or by other reasonable means. The "Last Updated" date at the top of this Agreement indicates when the most recent revisions were made.
Licensee's continued use of the Services after any changes to this Agreement constitutes Licensee's acceptance of the revised Agreement. If Licensee does not agree to the revised Agreement, Licensee must stop using the Services and terminate this Agreement.
Article XVII: Contact Information
If Licensee has any questions, concerns, or requests regarding this Agreement, Licensee may contact Licensor at:
Whimzi LLC
5473 Blair Rd Ste 100 No 250421
Dallas, TX 75231
United States
Email: [email protected]
Acknowledgment and Acceptance
BY INSTALLING, ACCESSING, OR USING THE SERVICES, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
END OF AGREEMENT