Acceptance of These Terms of Service
The Whym Group, Inc. (“Whym,” “we,” “us,” or “our”) provides our services (described below) and related content to you through our websites located at whymwallet.com, whym.cc (the “Sites”) and through our mobile device enabled technologies (“Mobile Services”, and collectively, such Mobile Services, the Sites, the Wallet Services (as defined below) and the Marketplace Services (as defined below), including any updated or new features, functionality and technology, the “Service”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). By accessing, browsing, or otherwise using the Sites, Mobile Services, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Sites. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST WHYM ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Additional Terms: In addition, when using certain Services, you will be subject to any additional terms applicable to such Services that may be posted on or within such Services from time to time, including, without, limitation our SMS Policy located at www.whymwallet.com/sms-policy. In order to use certain Services, you may also be required to accept the terms and conditions of our partners and service providers, such as Stripe, the Merchants (defined below) from which you purchase goods and services using the Service, and their respective service providers and financial institution partners. All such terms are hereby incorporated by reference into these Terms of Service.
Access and Use of the Service
Service Description: The Service is comprised of the following features and functionality and any additional features and functionality that may be added from time to time:
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account details, if any, and any other means you may use to access the Service. Any person with your device passcode or who has a fingerprint or face ID registered to your device will be able to authorize transactions on any credit card you link to your Whym Wallet or other feature of the Service. You are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Whym of any unauthorized use of your account or any other breach of security, including loss or theft of any credit card or device you use to access the Service, and (b) ensure that you exit from your account at the end of each session when accessing the Service. By adding your credit card to your Whym Wallet or by completing a transaction using our Service, you represent and warrant that you are the owner or authorized user of the credit card or debit card you select, and are authorized to make each transaction you authorize. It is your sole responsibility to maintain the security of your Whym Wallet and account, and we will not be responsible for any unauthorized charge to any credit card you linked to your Whym Wallet or account, except as strictly required by applicable law. Whym will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Service: Whym reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice, except to the extent required by applicable law. You agree that Whym will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, except as expressly provided by applicable law.
General Practices Regarding Use and Storage: You acknowledge that Whym may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Whym’s or its third-party service providers’ servers on your behalf. You agree that Whym has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Whym reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Whym reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice, except as required by applicable law.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Conditions of Access and Use
User Conduct: You are solely responsible for all information, data, text, software, and other materials that you make available to Whym (collectively, “User Content”). The following are examples of the kinds of content and/or uses that are illegal or prohibited by Whym. Whym reserves the right to investigate and take appropriate legal action against anyone who, in Whym’s sole discretion, violates this provision, including suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Service to:
a) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
b) violate any applicable local, state, national, or international law, or any regulations having the force of law;
c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d) violate the privacy, publicity, intellectual property or other rights of any other person or entity;
e) circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks; or
f) If you are blocked by Whym from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
Purchase of Products, Payments and Fees From Merchants Using the Wallet Services: The Wallet Services are provided for payment purposes only. We may permit you to add one or more personal credit cards or debit cards to your Wallet in order to purchase products from Merchants using the Service from time to time. We accept personal debit and credit cards only. If you are using the Wallet Services to purchase products from Merchants then your ensuing relationship is solely between you and such Merchant. Whym disclaims all responsibility and liability for any purchases you make from a Merchant. If you have questions or concerns regarding your purchase from a Merchant you should contact that Merchant directly. If you dispute any charges for goods or products purchased from a Merchant using the Wallet Services with a credit card you must contact the applicable Merchant within the period of time required by such Merchant’s payment policies and applicable terms and conditions. Please see “Using your Debit Card” below for more information about disputing any charges purchased using your debit card linked to your Whym Wallet.
Using your Debit Card
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
We may permit you to link your personal debit card to your Whym Wallet to make purchase transactions with the Whym Marketplace and any other Merchant which has agreed to accept the Whym Wallet as a payment method. The following additional terms apply to debit card transactions you make with the Whym Wallet. This section does not apply to any other transactions.
Questions: ALL QUESTIONS ABOUT CHARGES MADE TO YOUR DEBIT CARD USING THE WHYM WALLET MUST BE DIRECTED TO US, AND NOT TO THE BANK OR OTHER FINANCIAL INSTITUTION WHERE YOU HAVE YOUR BANK ACCOUNT. We are responsible for the Whym Wallet Service and for resolving any errors in transactions that charge your debit card, using the Whym Wallet.
We will not send you a periodic statement listing transactions that you make using your Whym Wallet. The transactions will appear only on the statement issued by your bank or other financial institution. SAVE THE RECEIPTS YOU ARE GIVEN WHEN YOU USE YOUR WHYM WALLET, AND CHECK THEM AGAINST THE BANK ACCOUNT STATEMENT YOU RECEIVE FROM YOUR BANK OR OTHER FINANCIAL INSTITUTION. If you have any questions about one of these transactions, call or write us at the telephone number and address indicated below.
Your Liability for Theft, Fraud, and Unauthorized Transactions: IF YOUR MOBILE DEVICE OR CREDENTIALS YOU USE TO ACCESS YOUR WHYM WALLET ARE LOST OR STOLEN, NOTIFY US AT ONCE by calling or writing to us at email@example.com, calling 1 (888) 818-0859 or writing us at The Whym Group, Inc., Attn: Whym Wallet, 1730 E Holly Ave, #760, El Segundo, CA 90245. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your bank account (plus your maximum overdraft line of credit). If you tell us within 4 business days after you learn of the theft or compromise of your Whym Wallet, you can lose no more than $50 if someone used your Whym Wallet without your permission.
If you do NOT tell us within 4 business days after you learn of the theft or compromise of your Whym Wallet, and we can prove we could have stopped someone from using your Whym Wallet without your permission if you had told us, you could lose as much as $500.
Also, if your statement (provided by your financial institution) shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 90 days after the statement was mailed to you, you may not get back any money you lost after the 90 days if we can prove that we could have stopped someone from using your Whym Wallet if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
Our Liability for Failure to Complete a Transaction: If we do not complete a debit card transaction you make using your Whym Wallet on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance: (1) If, through no fault of ours, you do not have enough money in your bank account to make the transaction; (2) If the transfer would go over the credit limit on your overdraft line; (3) If the system was not working properly and you knew about the breakdown when you started the transfer. (4) If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken. (5) There may be other exceptions stated in our agreements with you.
In Case of Errors or Questions About Your Debit Card Transactions: email us at firstname.lastname@example.org, calling 1 (888) 818-0859 or writing us at The Whym Group, Inc., Attn: Whym Wallet, 1730 E Holly Ave, #760, El Segundo, CA 90245 as soon as you can, if you think your statement (provided by your financial institution) or transaction receipt is wrong or if you need more information about a transaction listed on the statement or receipt.
We must hear from you no later than 90 days after your financial institution sent the FIRST statement on which the problem or error appeared.
(1) Tell us your name and bank account number (if any).
(2) Describe the transaction you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
(3) Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days.
We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your bank account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your bank account.
For errors involving new bank accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new bank accounts, we may take up to 20 business days to credit your bank account for the amount you think is in error.
We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
If your question, error, or dispute is about the quality of the goods or services you purchased from a Merchant using the Services, you must direct your inquiry to the Merchant.
Business Days: For the purpose of this section, our business days are Monday through Friday except for federal or bank holidays.
Fees: There is no fee to use your Whym Wallet to make a debit card transaction. However, your financial institution may charge fees. We are not responsible for any fees charged by your financial institution or any other third party for your use of the Whym Wallet, including overdraft fees or insufficient funds fees.
Confidentiality: We will disclose information to third parties about your Whym Wallet, debit card, or debit card transactions you make using your Whym Wallet: (i) Where it is necessary for completing transactions, or (ii) In order to verify the existence and condition of your account for a third party, such as a Merchant, or (iii) In order to comply with government agency or court orders, or (iv) If you give us your written permission.
Your Payment Authorization: By completing a transaction in the Marketplace, or by responding affirmatively (e.g., by replying “Y” via SMS or other messaging service) to an offer to purchase goods and services using the Wallet Services, you authorize us (or the relevant Merchant or our respective service provider) to charge your selected credit card or debit card for the amount of the goods and services you wish to purchase, plus applicable taxes, shipping fees, and other fees. By adding a credit card or debit card to your Whym Wallet or your Marketplace account, or by completing a transaction, you represent and warrant to us that you are an owner or authorized user of the credit card or debit card you select. You also authorize us to charge your selected credit card or debit card, or reverse a charge, in any amount necessary to correct any error.
Fees: When you use our services, you may have to pay other taxes or costs that are not imposed by us (such as internet charges and, fees imposed by the issuing bank of your credit card or debit card, or charges imposed by customs in your country). IN PARTICULAR, PLEASE NOTE, AS PAYMENTS ARE BEING CHARGED TO YOUR CREDIT CARD OR DEBIT CARD, YOU MAY BE CHARGED INTEREST AND FEES OR OTHER CHARGES IMPOSED BY YOUR CREDIT CARD OR DEBIT CARD ISSUER UNDER THEIR AGREEMENT WITH YOU. THIS COULD INCLUDE LATE PAYMENT FEES, OVERDRAFT FEES, PERIODIC INTEREST, OR OVER-THE-LIMIT FEES. YOU ARE SOLELY RESPONSIBLE FOR THESE FEES.
Mobile Services: The Service includes certain services that are available via a mobile device, including the ability to browse the Service and the Sites from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. By using the Mobile Services and submitting your contact information, you are consenting to be contacted by Whym by telephone (on a recorded line), automated calling, pre-recorded calling, text message, email or any other similar means means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. You understand that Whym may maintain the information you submit to us even if you decide not to use their services. In the event you no longer want to receive communications from Whym you agree to notify Whym directly. You can opt-out of various contact methods from Whym by contacting Whym directly or replying “STOP” to such text messages. By using the Mobile Services, you agree that certain information about your usage of the Mobile Services may be communicated to us. You hereby represent and warrant that in connection with the Mobile Services you will provide your own phone number, and not someone else’s phone number. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Whym account information to ensure that your messages are not sent to the person that acquires your old number. Your use of the Mobile Services is subject to Whym’s SMS Policy located at www.whymwallet.com/sms-policy.
Ownership; Restrictions: The technology and software underlying the Service or distributed in connection therewith are the property of Whym, its affiliates, and its licensors (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Whym.
Special Notice for International Use; Export Controls: The Service is based in the United States. If you access or use the Service from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Intellectual Property Rights
Service Content: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Whym, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content that you upload to or make available through the Service in accordance with these Terms of Service. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
Trademarks: The Whym name and logos are trademarks and service marks of Whym (collectively the “Whym Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Whym. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Whym Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Whym Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will Whym be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Whym does not pre-screen content, but that Whym and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Whym and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Whym, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content: You represent and warrant that you own all rights, title and interest in and to such User Content, including all copyrights and rights of publicity contained therein. You hereby grant Whym and its affiliated companies, successors, and assigns a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Service and the promotion, advertising or marketing of the foregoing in any form, medium or technology now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.
Any questions, comments, suggestions, ideas, feedback, reviews, or other information about the Service (“Submissions”), provided by you to Whym are non-confidential and Whym will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you.
You acknowledge and agree that Whym may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Whym, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Third-Party Services and Websites
You agree to defend, indemnify, and hold harmless Whym, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Whym Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Whym Party from or against any liability, losses, damages, or expenses incurred as a result of any action or inaction of such Whym Party. Whym will provide notice to you of any such claim, suit, or proceeding. Whym reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Whym’s defense of such matter. You may not settle or compromise any claim against the Whym Parties without Whym’s written consent. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WHYM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
THE WHYM PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WHYM PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE WHYM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE WHYM PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID WHYM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Whym will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Whym’s reasonable control.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Whym, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Whym are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND WHYM 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 WHYM 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Whym is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Whym should be sent to The Whym Group, 1730 E Holly Ave Suite #760, El Segundo, CA 90245 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Whym and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Whym may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Whym or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Whym is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Whym and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Whym agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Whym will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Whym will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Whym will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Whym agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Whym written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Whym, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Whym believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Whym may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Whym may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Whym will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Whym will have no liability or responsibility with respect thereto. Whym reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service (together with the terms incorporated by reference herein) constitute the entire agreement between you and Whym governing your access and use of the Service, and supersede any prior agreements between you and Whym with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Whym submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California. The failure of Whym to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Whym, but Whym may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at firstname.lastname@example.org; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at The Whym Group, 1730 E Holly Ave Suite #760, El Segundo, CA 90245.
U.S. Government Restricted Rights
The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including the Software).
Questions? Concerns? Suggestions?
Please contact us at email@example.com or write to: The Whym Group, 1730 E Holly Ave, #760, El Segundo, CA 90245 to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.