Terms of Use Agreement

Last Updated Date: 10/05/2021

PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY.  THIS WEBSITE AND ITS SUBDOMAINS (COLLECTIVELY, THE “WEBSITE”), ANY COMPANY APPLICATION (“APP”), AND THE INFORMATION, FUNCTIONS, FEATURES, SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR THE APP (THE “SERVICES”), ARE CONTROLLED BY WHITMAN VENTURES, LLC. (“COMPANY”).  THESE TERMS OF USE ALONG WITH ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “TERMS OF USE”), GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY COMPLETING THE REGISTRATION PROCESS, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY IDENTIFIED DURING THE ACCOUNT REGISTRATION PROCESS, AND TO BIND THAT LEGAL ENTITY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR SUCH LEGAL ENTITY, AS APPLICABLE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

PLEASE BE AWARE THAT SECTION 1.6 (COMPANY COMMUNICATIONS) OF THE TERMS OF USE BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

Any changes to the Terms of Use will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website or App (or, if sooner, after dispatch of an email) for existing Registered Users.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services.  Otherwise, your continued use of the Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE AND APPLICATION TO VIEW THE THEN-CURRENT TERMS.

  1. USE OF THE SERVICES. The Services, and the information and content available on them, are protected by applicable intellectual property laws.  Unless subject to a separate license between you and Company, your right to use any and all Services is subject to the Terms of Use.
    • App License. Subject to your compliance with the Terms of Use, Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single device that you own or control and to run such copy of the App solely for your own personal or internal business purposes.  Furthermore, with respect to any App accessed through or downloaded from the Apple Store (an “Apple Store Sourced Application”), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google store (a “Google Sourced Application”), you may have additional license rights with respect to use of such Google Sourced Application on a shared basis within your designated family group.
    • You understand that the Services are evolving.  As a result, Company may require you to accept updates to the Services that you have installed on your computer or mobile device.  You acknowledge and agree that Company may update the Services with or without notifying you.  You may need to update third-party software from time to time in order to use the Services.
    • Certain Restrictions. The rights granted to you in the Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms of Use.  Company, its suppliers and service providers reserve all rights not granted in the Terms of Use. 
    • Conduct Standards. As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Terms of Use or by applicable law. You shall not (and shall not permit any third party) take any action that: (i) infringes, misappropriates or otherwise violates any intellectual property right, right of publicity, right of privacy or other right of any person or entity; (iii) impersonates any person or entity, including any employee or representative of Company; (iv) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms of Use; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Company Properties.
    • Monitoring and Enforcement. Company reserves the right to: (a) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (b) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Terms of Use. If Company becomes aware of any possible violations by you of the Terms of Use, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, in Company’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms of Use, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
    • Company Communications. By entering into the Terms of Use or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications.  You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems.  Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, and news concerning the Company and industry developments.  Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send.  IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
  2. REGISTRATION
    • Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User.  For purposes of the Terms of Use, a “Registered User” is a user who has registered an account with Company through the Services (“Account”) or has an account with the provider of the App for the user’s device.
    • Registration Data. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are of legal age to form a binding contract; and (iii) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use.  You may not share your Account login, cryptographic token, or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).  You agree not to create an Account using a false identity or information. Unless you have legal guardianship for an individual for whom you have established an identity within your account, you may not establish an identity on behalf of someone other than yourself.  You agree that you shall not have more than one Account per platform at any given time.  You agree not to create an Account or use the Services if you have been previously removed by Company, or if you have been previously banned from any of the Services.
    • Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a device that is suitable to connect with and use the App.  You are solely responsible for any fees, including Internet connection or fees, that you incur when accessing the Services.
  3. OWNERSHIP
    • You agree that Company and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, methods of operation, moral rights, documentation, and Company software).  You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
    • Company’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Company and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
    • You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Company’s business.
  4. INTERACTIONS WITH OTHER USERS.

    5. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact.  You agree that Company will not be responsible for any liability incurred as the result of such interactions.

  5. INDEMNIFICATION

    You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of any Service in violation of the Terms of Use; (b) your violation of any rights of another party, including any Registered Users; (c) your violation of any applicable laws, rules or regulations; or (d) your submission of false or misleading information.  Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Company in asserting any available defenses.  You agree that the provisions in this section will survive any termination of your Account, the Terms of Use and/or your access to the Services.

  6. DISCLAIMER OF WARRANTIES AND CONDITIONS.
    • As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. 
      • COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
      • NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      • FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
    • No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
    • User Content. EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY INFORMATION ASSOCIATED WITH YOUR ACCOUNT.
  7. LIMITATION OF LIABILITY.
    • Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF USE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY.
    • Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE HIGHER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) $50.
    • Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    • Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
  8. TERM AND TERMINATION.
    • The Terms of Use commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms of Use.
    • Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Terms of Use commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Terms of Use, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Terms of Use.
    • Termination of Services by Company.      If you have materially breached any provision of the Terms of Use, if Company decides in its sole discretion to stop providing the applicable Services, or if Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
    • Termination of Services by You. If you want to terminate the Services provided by Company, you may do so by (a) notifying Company at any time and (b) deleting the App from your device.  Your notice should be sent, in writing, to Company’s address set forth below.       
    • Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes irrevocable deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof).  Upon termination of any Service, your right to use such Service will automatically terminate immediately.  All provisions of the Terms of Use which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
  9. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services that are not available in your country.  These references do not imply that Company intends to announce such Services in your country.  The Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Services are appropriate or available for use in other locations.  Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
  10. THIRD-PARTY SERVICES.
    • App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple or Google (each, an “App Store”).  You acknowledge that the Terms of Use is between you and Company and not with the App Store.  Company, not the App Store, is solely responsible for the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).  In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access.  You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App.  You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce it.
  11. GENERAL PROVISIONS.
    • ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THESE TERMS OF USE.
    • Exclusive Venue. Both you and Company agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in New York.
    • Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit the Services or send Company e-mails, or whether Company posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
    • The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    • Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    • Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@app.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    • Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Company at the following address: 90 State Street, STE 700 Office 40, Albany, NY, 12207, USA.  Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    • Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • If any portion of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    • Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
    • Entire Agreement. The Terms of Use are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
  12. PRIVACY POLICY
    • Our Privacy Policy found at http://whitsbits.app/privacy forms a part of this Agreement. Please review the Privacy Policy to learn about:
    • What information we may collect about you;
    • What we use that information for; and
    • With whom we share that information