Last
updated on January 22, 2023
Welcome to Whip, a premium, fully
contactless car rental app provided by Whip Corp. ("Whip",
"we," or "us"). This Terms of Service Agreement
("Agreement") describes the terms and conditions that govern your use
of and participation in Whip services. Whip services include mobile device
software application (the "Whip Software") owned, controlled, or
offered by Whip (the "Service"). By accessing or using the Service,
you signify that you have read, understood, and agree to be bound by this
Agreement and to the collection and use of your information as set forth in the Privacy Policy, whether or not you are a registered user of our
Service. This Agreement applies to all visitors, users, and others who access
the Service ("Users").
PLEASE READ THIS AGREEMENT
CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. YOU UNDERSTAND AND
AGREE THAT WHIP IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN RENTERS
AND PARTNERS, NOR IS WHIP A TRANSPORTATION SERVICE, AGENT, OR INSURER. WHIP HAS
NO CONTROL OVER THE CONDUCT OF RENTERS OR PARTNERS AND OTHER USERS OF THE
SERVICE AND DISCLAIMS ALL LIABILITY IN THIS REGARD. THIS AGREEMENT CONTAINS A
MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF
ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS
OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF
A DISPUTE.
THIS AGREEMENT CONTAINS A
MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION
THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
We may, in our sole discretion,
modify or update this Agreement from time to time, and so you should review
this page periodically. When we change the Agreement, we will update the last
modified date at the top of this page. If there are material changes to this
Agreement, we will notify you either by prominently posting a notice of such
changes prior to implementing the change or by directly sending you a
notification. Your continued use of the Service after any such change
constitutes your acceptance of the new Terms of Service. If you do not agree to
any of these terms or any future Terms of Service, do not use or access (or
continue to access) the Service.
This Service is intended solely
for licensed drivers twenty-five (25) years of age or older, and any
registration, use, or access to the Service by anyone under the required
minimum age is strictly prohibited and in violation of this Agreement. The
Service is not available to any Users previously removed from the Service by Whip,
unless Whip has given you written notice of reinstatement. All Users must pass
our Eligibility Requirements and must provide all necessary and complete documentation
for determining eligibility throughout your use of the Service, as may be
determined and requested by Whip in its sole discretion. You acknowledge and agree
that Whip may change its Eligibility Requirements at any time and for any
reason.
Parts of our Service requires
that you open a user account (“Account”). In order to reserve a vehicle on Whip,
you will need to apply for a "Renter" Account. In order to rent out
your vehicle to a Renter on Whip, you will need to apply for a "Partner"
Account.
As used in this Agreement, “Partner”
shall mean any User for whom Whip establishes a “Partner” Account and submits a
vehicle that meets all of the eligibility requirements set forth in this
Agreement and the Eligibility Requirements, incorporated herein by reference, to be shared
through or via the Service.
As used in this Agreement, “Renter”
shall mean any User that establishes a “Renter” Account, which would allow such
User to reserve a vehicle through or via the Service.
By applying for a Renter or Partner
Account, you give us permission to disclose the information you provide on your
application to third parties for verification purposes and to obtain additional
information about you. Whip may accept or reject Renter or Partner Account
applications, in our sole discretion, for any reason. If you are accepted for a
Renter and/or Partner Account, you acknowledge and agree to abide by this
Agreement and the Vehicle Eligibility Requirements which are applicable to your
particular type of Account.
Users with a Renter or Partner
Account are collectively referred to in this Agreement as "Members."
Your Member Account gives you access to the services and functionality that we
may establish and maintain from time to time and in our sole discretion. Each
transaction in which a Renter reserves a vehicle from a Partner via the Service
is referred to in this Agreement as a "Booking."
You acknowledge and agree as
follows:
When applying for and creating
your Account, you must provide accurate and complete information and keep such
information updated and accurate throughout the term of this Agreement. You are
solely responsible for the activity that occurs on your Account, and you must
keep your Account password secure. You must notify Whip immediately of any
breach of security or unauthorized use of your Account. Whip will not be liable
for any losses caused by any unauthorized use of your Account.
You may control your Member
profile and how you interact with the Service by changing the options in your
Settings page. By providing Whip your email address, you consent to our using
of the email address to send you Service-related email, including any notices
required by law, in lieu of communication by postal mail. By providing Whip
your cell phone number, you consent to our using of the phone number to send
you Service-related SMS messages. You may not opt out of Service-related emails
or SMS messages. BY
SIGNING UP FOR AN ACCOUNT ON WHIP AND PROVIDING YOUR PHONE NUMBER, YOU AGREE TO
RECEIVE TEXT MESSAGES FROM US. We may also use your email
address and/or cell phone number to send you other messages, such as changes to
features of the Service and special offers. If you do not want to receive such
messages, you may opt out or change your preferences on your Settings page.
Opting out may prevent you from receiving messages regarding updates,
improvements, or offers.
You agree not to engage in any of
the following prohibited activities: (i) copying, distributing, or disclosing
any part of the Service in any medium, including without limitation by any
automated or non-automated "scraping"; (ii) using any automated
system, including without limitation "robots, "spiders,"
"offline readers," etc., to access the Service in a manner that sends
more request messages to the Whip servers than a human can reasonably produce
in the same period of time using a conventional online web browser, except that
Whip grants the operators of public search engines revocable permission to use
spiders to copy materials from Takeawhip.com 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; (iii) transmitting
spam, chain letters, or other unsolicited email; (iv) attempting to interfere
with, compromise the system integrity or security, or decipher any
transmissions to or from the servers running the Service; (v) taking any action
that imposes or may impose at our sole discretion an unreasonable or
disproportionately large load on our infrastructure; (vi) uploading invalid
data, viruses, worms, or other software agents through the Service; (vii)
collecting or harvesting any personally identifiable information, including
Account names, from the Service; (viii) using the Service for any commercial
solicitation purposes; (ix) impersonating another person or otherwise
misrepresenting your affiliation with a person or entity, conducting fraud, or
hiding or attempting to hide your identity; (x) interfering with the proper
working of the Service; (xi) accessing any content on the Service through any
technology or means other than those provided or authorized by the Service; or
(xii) bypassing the measures we may use to prevent or restrict access to the
Service, including, without limitation, features that prevent or restrict the
use or copying of any content, or enforce limitations on use of the Service or
the content therein.
Whip may permanently or
temporarily terminate, suspend, or otherwise refuse to permit your access to
the Service without notice and liability for any reason, including if, in Whip's
sole determination, you violate any provision of this Agreement, or for no reason.
Upon termination for any reason or no reason, you continue to be bound by this
Agreement. All aspects of the Service are subject to change or elimination at Whip's
sole discretion. Whip reserves the right to interrupt the Service with or
without prior notice for any reason or no reason. You agree that Whip will not
be liable to you for any interruption of the Service, delay, or failure to
perform.
While using the Service, you may
receive information disclosed by us that would, under the circumstances of such
disclosure, appear to a reasonable person to be confidential or proprietary
("Confidential Information"). You may not use any of our Confidential
Information for your own use or for any purpose other than to carry out
discussions concerning, and the undertaking of, your use of and participation
in the Service (the "Relationship"). You shall not disclose or
permit disclosure of any Confidential Information to third parties or to your
employees (if any), other than your directors, officers, employees, and
consultants who are required to have the information in order to carry out the
discussions regarding the Relationship. You shall take reasonable measures to
protect the secrecy of and avoid disclosure or use of our Confidential
Information in order to prevent it from falling into the public domain or the
possession of persons other than those persons authorized under this Agreement
to have any such information. Such measures shall include the degree of
care that you use to protect your own confidential information of a similar
nature. You shall immediately notify us of any misuse, misappropriation or
unauthorized disclosure of our Confidential Information that may come to
Recipient’s attention.
If you are a Partner, you agree
to our Partner Policy and Parking Policy, incorporated herein by reference. If you are a Partner,
by accessing or using the Service, you signify that you have read, understood,
and agree to be bound by the Partner Policy. If you are a Renter, you agree to our Renter Policy incorporated herein by reference. If you are a Renter,
by accessing or using the Service, you signify that you have read, understood,
and agree to be bound by the Renter Policy. If you are a Renter and/or Partner,
you signify that you have read, understood, and agree do be bound by our Promotions Policy.
If you are using the Service as a
Partner and your vehicle requires the installation of a Whip telematic device,
your use of the Services are subject to, in addition to these Terms, the Connect Terms and Conditions (the “Connect Terms”) incorporated herein
by reference.
Additionally, as a Partner, you
represent and warrant that (i) you own or have all the necessary rights,
consents, and authority to permit the vehicle you submit to be used as
contemplated by the Service; and (ii) the use of the vehicle you submit as
contemplated herein will not violate any rights of a third party or any
agreement with respect to such vehicle, including any leasing or financing
agreement.
Subject to the terms and
conditions of this Agreement, you are hereby granted a non-exclusive, limited,
non-transferable, freely revocable license to use the Service for your
personal, noncommercial use only. Whip reserves all rights not expressly
granted herein in the Service. Whip may terminate this license at any time for
any reason or no reason.
To use the Whip Software you must
have a mobile device that is compatible with the Whip Service. Whip does not
warrant that the Whip Software and/or Whip Service will be compatible with your
mobile device.
Whip hereby grants you a
non-exclusive, non-transferable, revocable license to use a compiled code copy
of the Whip Software for one Whip Member Account on one mobile device owned or
leased solely by you, for your personal use.
You may not: (i) modify,
disassemble, decompile, or reverse engineer the Whip Software, except to the
extent that such restriction is expressly prohibited by law; (ii) rent, lease,
loan, resell, sublicense, distribute, or otherwise transfer the Whip Software
to any third party or use the Whip Software to provide time sharing or similar
services for any third party; (iii) make any copies of the Whip Software; (iv)
remove, circumvent, disable, damage, or otherwise interfere with
security-related features of the Whip Software, features that prevent or
restrict use or copying of any content accessible through the Whip Software, or
features that enforce limitations on use of the Whip Software; or (v) delete
the copyright and other proprietary rights notices on the Whip Software.
You acknowledge that Whip may
from time to time issue upgraded versions of the Whip Software and may
automatically electronically upgrade the version of the Whip Software that you
are using on your mobile device. You consent to such automatic upgrading on
your mobile device, and your continued use of the Whip Software or Service
constitutes your agreement to the terms and conditions of this Agreement will
apply to all such upgrades.
Any third-party code that may be
incorporated in the Whip Software is covered by the applicable open source or
third-party license EULA, if any, authorizing use of such code.
The foregoing license grant is
not a sale of the Whip Software or any copy thereof, and Whip or its third party
partners or suppliers retain all right, title, and interest in the Whip
Software (and any copy thereof). Any attempt by you to transfer any of the
rights, duties, or obligations hereunder, except as expressly provided for in
this Agreement, is void. Whip reserves all rights not expressly granted under
this Agreement.
If the Whip Software is being
acquired on behalf of the United States Government, then the following
provision applies. Use, duplication, or disclosure of the Whip Software by the
U.S. Government is subject to restrictions set forth in this Agreement and as
provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS
252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR
52.227-14 (ALT III), as applicable.
The Whip Software originates in
the United States and is subject to United States export laws and regulations.
The Whip Software may not be exported or re-exported to certain countries or
those persons or entities prohibited from receiving exports from the United
States. In addition, the Whip Software may be subject to the import and export
laws of other countries. You agree to comply with all United States and foreign
laws related to use of the Whip Software and the Whip Service.
The following applies to any Whip
Software you acquire from the iTunes Store ("iTunes-Sourced
Software"): You acknowledge and agree that this Agreement is solely
between you and Whip, not Apple, and that Apple has no responsibility for the
iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced
Software must comply with the App Store Terms of Service. You acknowledge that
Apple has no obligation whatsoever to furnish any maintenance and support
services with respect to the iTunes-Sourced Software. In the event of any
failure of the iTunes-Sourced Software to conform to any applicable warranty,
you may notify Apple, and Apple will refund the purchase price for the
iTunes-Sourced Software to you; to the maximum extent permitted by applicable
law, Apple will have no other warranty obligation whatsoever with respect to
the iTunes-Sourced Software, and any other claims, losses, liabilities,
damages, costs, or expenses attributable to any failure to conform to any
warranty will be solely governed by this Agreement and any law applicable to Whip
as provider of the software. You acknowledge that Apple is not responsible for
addressing any claims of you or any third party relating to the iTunes-Sourced
Software or your possession and/or use of the iTunes-Sourced Software,
including but not limited to: (i) product liability claims; (ii) any claim that
the iTunes-Sourced Software fails to conform to any applicable legal or
regulatory requirement; and (iii) claims arising under consumer protection or
similar legislation; and all such claims are governed solely by this Agreement
and any law applicable to Whip as provider of the software. You acknowledge
that, in the event of any third party claim that the iTunes-Sourced Software or
your possession and use of that iTunes-Sourced Software infringes that third
party’s intellectual property rights, Whip, not Apple, will be solely
responsible for the investigation, defense, settlement, and discharge of any
such intellectual property infringement claim to the extent required by this
Agreement. You and Whip acknowledge and agree that Apple, and Apples
subsidiaries, are third party beneficiaries of this Agreement as relates to
your license of the iTunes-Sourced Software, and that, upon your acceptance of
the terms and conditions of this Agreement, Apple will have the right (and will
be deemed to have accepted the right) to enforce this Agreement as relates to
your license of the iTunes-Sourced Software against you as a third party
beneficiary thereof.
The Service and all materials
therein or transferred thereby, including, without limitation, software, images,
text, graphics, illustrations, logos, patents, trademarks, service marks,
copyrights, photographs, audio, videos, music, and User Content (the "Whip
Content"), and all Intellectual Property Rights related thereto, are the
exclusive property of Whip and its licensors. Except as explicitly provided
herein, nothing in this Agreement shall be deemed to create a license in or
under any such Intellectual Property Rights, and you agree not to sell,
license, rent, modify, distribute, copy, reproduce, transmit, publicly display,
publicly perform, publish, adapt, edit, or create derivative works from any
materials or content accessible on the Service. Use of the Whip Content or
materials on the Service for any purpose not expressly permitted by this
Agreement is strictly prohibited.
You may choose to or we may
invite you to submit comments or ideas about the Service, including without
limitation about how to improve the Service or our products
("Ideas"). By submitting any Idea, you agree that your disclosure is
gratuitous, unsolicited, and without restriction and will not place Whip under
any fiduciary or other obligation, and that we are free to use the Idea without
any additional compensation to you, and/or to disclose the Idea on a
non-confidential basis or otherwise to anyone. You further acknowledge that, by
acceptance of your submission, Whip does not waive any rights to use similar or
related ideas previously known to Whip, or developed by its employees, or
obtained from sources other than you.
You agree to the fees and
charges, terms of sale, and payment and billing policies applicable to your use
of the Service as stated in our Fee and Payment Schedule incorporated herein by reference. Whip may
add new services for additional fees and charges, or amend fees and charges for
existing services, at any time in its sole discretion. All fees and charges for
your use of the Service are non-refundable, except as may be expressly stated
in the Fee and Commission Schedule.
If you are a Renter, the total
price you will be charged for your use of a car as part of the Service consists
of: 1) the initial Booking price, 2) the cost of any trip extras, 3) the cost
of any trip extensions, and 4) any applicable taxes. A percentage of the
initial Booking price and trip extensions is paid to Partners, which Whip
collects on behalf of Partners as limited agent of Partners, as further
specified in our Fee and Payment Schedule. The remaining percentage of the initial Booking
price, trip extras, and extensions is paid directly to Whip by the Renter for
facilitating trips and providing the Services.
If you are a Partner, you hereby
appoint Whip as your payment collection agent solely for the limited purpose of
accepting funds from a Renter on your behalf in connection with a Booking.
Payment from Whip shall be considered the same as payment made directly to you
by the Renter, and you will provide the Booking to the Renter in accordance
with your agreement to do so as if you received the payment directly from the Renter.
Upon the Renter’s payment of the funds to Whip, the Renter's payment obligation
to you for the agreed upon amount is terminated, and Whip is instead
responsible for remitting the funds to you in the manner described in this
Agreement. You have recourse against only Whip if it fails to remit funds
received from a Renter pursuant to the Renter's obligations to you.
If you are a Partner, you understand, acknowledge, and agree that Whip may set
the Booking fee for your car. Whip will adjudicate the Booking fee on your
behalf, which means processing the Renter's credit card, retaining a commission
as set forth in our Fee and Commission Schedule and remitting such funds to you as
provided in this section. Whip will remit payments due to you hereunder no
later than thirty (30) days after the end of each calendar month in which the
applicable fees are received. Payment shall be in the form you select when you
register for the Service, or subsequently updated as permitted by the Service.
Payments shall only be made in those months in which the amount due to you
totals at least $100.00. Unpaid amounts due shall accrue until the next month
in which the amount due is at least $100.00. Whip reserves the right to
withhold payment or charge back to your Account any amounts otherwise due to us
under this Agreement, or any amounts due as a result of a breach of this
Agreement by you, pending Whip's reasonable investigation of such breach. To
ensure proper payment, you are solely responsible for providing and maintaining
accurate contact and payment information associated with your Account, which
includes, without limitation, applicable tax information. If we believe that we
are obligated to obtain tax information and you do not provide this information
to us after we have requested it, we may withhold your payments until you
provide this information or otherwise satisfy us that you are not a person or
entity from whom we are required to obtain tax information. Any bank fees
related to returned or cancelled checks due to a contact or payment information
error or omission may be deducted from the newly issued payment. You agree to
pay all applicable taxes or charges imposed by any government entity in
connection with your participation in the Service. If you dispute any payment
made hereunder, you must notify Whip in writing within thirty (30) days of any
such payment; failure to so notify Whip shall result in the waiver by you of
any claim relating to any such disputed payment. Payment shall be calculated
solely based on records maintained by Whip. No other measurements or statistics
of any kind shall be accepted by Whip or have any effect under this Agreement.
In addition to the amount due,
delinquent Accounts and/or chargebacks will be charged with fees and/or charges
that are incidental to the collection of delinquent Accounts and/or chargebacks
including, but not limited to collection fees and/or convenience fees and/or
other third parties charges. If we need to contact you to service your account
or to collect amounts you owe, you authorize us and our subcontractors,
including debt collection agencies, to contact you at any phone number or email
address you provide, from which you contact us, or at which we believe we can
reach you. You consent to be contacted in any way, such as calling, texting,
emailing, sending mobile application push notifications, or using any other
method of communication permitted by law and to contact you on a mobile,
wireless, or similar device, even if you are charged for it. You consent to be contacted
using an automated dialer or prerecorded messages. You certify that any email
address you provide is a personal email address and not a work email address.
If you change your email address, phone number, home address, it is your
obligation to update us.
We care about the privacy of our
Users. Our Privacy Policy outlines how we use and safeguard your information.
You understand that by using the Service, you are consenting to the collection,
use, and disclosure of your personally identifiable information and aggregate
data as set forth in our Privacy Policy, and to have your personally
identifiable information collected, used, transferred to, and processed in the
United States.
We have implemented commercially
reasonable technical and organizational measures designed to secure your
personal information from accidental loss and from unauthorized access, use,
alteration, or disclosure. However, we cannot guarantee that unauthorized third
parties will never be able to defeat those measures or use your personal
information for improper purposes. You acknowledge that you provide your
personal information at your own risk.
In addition to the other
representations and warranties in this Agreement, you affirm, represent and
warrant that:
The Service may contain links to
third-party websites, advertisers, services, special offers, or other events or
activities that are not owned or controlled by Whip. Whip does not endorse any
such sites or the information, materials, products, or services contained on or
accessible through such sites. Whip has no control over, and assumes no
responsibility for, the content, privacy policies, or practices of any third
party websites or services. If you access a third party website from the
Service, you do so at your own risk, and you understand that this Agreement and
Whip's Privacy Policy do not apply to your use of such sites. You expressly
relieve Whip from any and all liability arising from your use of any
third-party website or services or third party owned content. Additionally,
your dealings with or participation in promotions of advertisers found on the
Service, including payment and delivery of goods, and any other terms (such as
warranties) are solely between you and such advertisers. You agree that Whip
shall not be responsible for any loss or damage of any sort relating to your
dealings with such advertisers.
We encourage you to be aware of
when you leave the Service, and to read the terms and conditions and privacy
policy of any third-party website or services that you visit.
You agree to defend, indemnify,
and hold harmless Whip and its subsidiaries, agents, licensors, managers, and
other affiliated companies, and their employees, contractors, agents, officers,
and directors, from and against any and all claims, damages, obligations,
losses, liabilities, costs or debt, and expenses (including but not limited to
attorney's fees) arising from: (i) your use of and access to the Service,
including any data or content transmitted or received by you; (ii) your
violation of any term of this Agreement, including, without limitation, your
breach of any of the representations and warranties above; (iii) your violation
of any third-party right, including, without limitation, any right of privacy,
publicity rights or Intellectual Property Rights; (iv) your violation of any
law, rule, or regulation of the United States or any other country; or (vi) any
other party’s access and use of the Service with your unique username,
password, or other appropriate security code.
If a claim is brought against us
that is subject to indemnification by you, we will notify you in writing of
such claim, allow you to defend or settle the claim with legal counsel
reasonably acceptable to us, and provide you with reasonable cooperation (at
your expense) in your defense or settlement of the claim. We will have the
right, at our option and expense, to participate in the defense or settlement
of any claim, either directly or through counsel of our choosing. You will not
have the right to settle any claim without our prior written consent, which
consent will not be unreasonably withheld.
Whip maintains insurance that
provides certain coverage to Renters for Bookings transacted through the
Service, as further described in our Insurance Statement (the "Whip Insurance"). In the event
that a Booking in which you participate as a Renter results in a claim covered
by the Whip Insurance, Whip will make reasonable efforts to assist you in
submitting a claim. Whip does not guarantee the results of any claim submitted
for coverage under the Whip Insurance. You agree that all insurance-related
communications will be conducted electronically. Please read the Electronic
Business Consent, which provides further details regarding your agreement to
receive all insurance-related communications electronically.
IF YOU CHOOSE TO USE THE SERVICE
AND/OR PARTICIPATE IN A BOOKING, YOU DO SO AT YOUR OWN RISK. YOU ACKNOWLEDGE
AND AGREE THAT WHIP MAY NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ANY USER,
INCLUDING BUT NOT LIMITED TO RENTERS AND PARTNERS. THE SERVICE AND ANY CONTENT
IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY YOU FROM WHIP OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY
STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WHIP, AND ITS LICENSORS DO NOT
WARRANT THAT THE SERVICE OR ANY BOOKING WILL MEET YOUR REQUIREMENTS; THAT THE
SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR
SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR
ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF THE SERVICE.
WHIP DOES NOT WARRANT, ENDORSE,
GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR
OFFERED BY A THIRD PARTY THROUGH THE WHIP SERVICE OR ANY HYPERLINKED WEBSITE OR
SERVICE, AND WHIP WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION
BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
EXCEPT AS EXPRESSLY PROVIDED IN
SECTION “INSURANCE”, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL WHIP, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR
ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES,
THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE, INCLUDING
WITHOUT LIMITATION ANY BOOKING. UNDER NO CIRCUMSTANCES WILL WHIP BE RESPONSIBLE
FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER
UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION
CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, WHIP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I)
ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY
DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR
SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS, AND/OR
ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR
CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN
HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY
THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR
DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED,
TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER
CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN
NO EVENT SHALL WHIP, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS,
OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES,
OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF
EITHER (a) THE AMOUNTS PAID BY WHIP TO YOU IN THE TWELVE (12) MONTH PERIOD
PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR (b) ONE HUNDRED DOLLARS
($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF
THE BASIS OF THE BARGAIN BETWEEN WHIP AND YOU.
THIS LIMITATION OF LIABILITY
SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WHIP HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL
APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO
YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE
OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND
LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT
PROHIBITED BY APPLICABLE LAW.
The Service is controlled and
operated from its facilities in the United States. Whip makes no
representations that the Service is appropriate for use in other locations.
Those who access or use the Service from other jurisdictions do so at their own
volition and are entirely responsible for compliance with all applicable United
States and local laws and regulations, including but not limited to export and
import regulations. You may not use the Service if you are a resident of a
country embargoed by the United States or are a foreign person or entity
blocked or denied by the United States government. Unless otherwise explicitly
stated, all materials found on the Service are solely directed to individuals,
companies, or other entities located in the United States.
This Agreement, and any rights
and licenses granted hereunder, may not be transferred or assigned by you, but
may be assigned by Whip without restriction. Any attempted transfer or
assignment in violation hereof shall be null and void.
You may terminate your
participation in the Service at any time, for any reason, upon receipt by us of
your written or email notice of termination. We may terminate your
participation in the Service at any time, for any reason or no reason, without
explanation. We maintain sole discretion to bar your use of the Service in the
future, for any reason that we determine or for no reason. This Agreement will
remain in effect after your participation in the Service terminates.
You agree that: (i) the Service
shall be deemed solely based in California; and (ii) the Service shall be
deemed a passive one that does not give rise to personal jurisdiction over Whip,
either specific or general, in jurisdictions other than California. This
Agreement shall be governed by the internal substantive laws of the State of
California, without respect to its conflict of laws principles. Notwithstanding
the preceding sentences with respect to the substantive law, any arbitration
conducted pursuant to the terms of these Terms shall be governed by the Federal
Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations
Convention on Contracts for the International Sale of Goods is expressly
excluded. You agree to submit to the personal jurisdiction of the superior
court of California, located in the county of Los Angeles, for any actions for
which we retain the right to seek injunctive or other equitable relief in a
court of competent jurisdiction to prevent the actual or threatened
infringement, misappropriation, or violation of our copyrights, trademarks,
trade secrets, patents, or other intellectual property or proprietary rights,
as set forth in the Arbitration provision below, including any provisional
relief required to prevent irreparable harm. You agree that the City and County
of Los Angeles, California is the proper forum for any appeals of an
arbitration award or for trial court proceedings if the arbitration provision
below is found to be unenforceable.
WITH RESPECT TO ALL PERSONS AND
ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR
PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE
PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS
ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE
MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT,
YOU AND WHIP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN
A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER
REPRESENTATIVE PROCEEDING OF ANY KIND.
Whip may provide notifications,
whether such notifications are required by law or are for marketing or other
business related purposes, to you via email notice, written or hard copy
notice, or through conspicuous posting of such notice on our website, as
determined by Whip in our sole discretion. Whip reserves the right to determine
the form and means of providing notifications to our Users, provided that you
may opt out of certain means of notification as described in this Agreement. Whip
is not responsible for any automatic filtering you or your network provider may
apply to email notifications we send to the email address you provide us. We
recommend that you add hi@takeawhip.com to your email address book to help ensure
you receive email notifications from us.
This Agreement, together with all
amendments, all documents referenced in this Agreement, and any other legal
notices and agreements published by Whip via the Service, shall constitute the
entire agreement between you and Whip concerning the Service. If a court of
competent jurisdiction deems any provision of this Agreement invalid, the
invalidity of such provision shall not affect the validity of the remaining
provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this
Agreement shall be deemed a further or continuing waiver of such term or any
other term, and Whip's failure to assert any right or provision under this
Agreement shall not constitute a waiver of such right or provision.
You and Whip agree that any cause
of action arising out of or related to the Service must commence within one (1)
year after the cause of action accrues. Otherwise, such cause of action is
permanently barred.
The Service is offered by Whip
Corp.., located at 634 E Angeleno Ave, Apt. K, Burbank, CA 91501, and can be
reached via email hi@takeawhip.com.