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Whizkins Terms of Use Agreement


This is an Agreement


PLEASE READ THIS AGREEMENT CAREFULLY IF YOU WISH TO CONTINUE TO USE OUR WEBSITE AS THIS AGREEMENT GOVERNS YOUR USE. BY USING OUR WEBSITE YOU AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DON'T AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE. 


Welcome to Whizkins, and thank you for using our products and services ("Services"). Services and Whizkins.com (the "Website") are provided by Whizkins Corporation or its subsidiaries and affiliated companies (collectively, "Whizkins").  By using the Website, you hereby agree to be bound by these Terms of Use (this "Agreement"), whether or not you subscribe as a member of the Website ("Subscriber"). If you wish to become a Subscriber and make use of the Website or Services, please carefully read this Agreement. If you object to anything in this Agreement, our Privacy Policy or Legal Disclaimer, do not use the Website or the Services.


This Agreement applies to your access to, and use of, all or part of any websites or mobile applications owned and operated by Whizkins, including the Website and any other site, mobile application or online service (collectively, the "Sites") where this Agreement is posted.  This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Whizkins for Services or any other products, services or otherwise. If you are using the Sites on behalf of any entity, you represent and warrant that you are authorized to enter into this Agreement on such entity's behalf, and that such entity hereby agrees to indemnify you and Whizkins for violations of this Agreement.  This Agreement contains disclaimers and other provisions that limit our liability to you and any entity you may represent. In the event there is any conflict or inconsistency between this Agreement and any other terms of use that appear on the Sites, this Agreement will govern. However, if you navigate away from the Sites to a third party site, you may be subject to alternative terms and conditions of use, as may be specified on such site. In such event, the terms and conditions of use applicable to that site will govern your use of that site.


While we make reasonable efforts to provide accurate and timely information about Whizkins on the Sites, you should not assume that the information is always up to date or that the Sites contain all the relevant information available about Whizkins. In particular, if you are making an investment decision regarding Whizkins, please consult a number of different sources.


Acceptance of Terms of Whizkins Subscription Agreement


This Agreement is a contract that sets out the legally binding terms of your subscription to the Website. This Agreement may be modified by Whizkins from time to time where such modifications are to become effective upon posting by Whizkins on the Website. This Agreement includes Whizkins' Privacy Policy, Legal Disclaimer, Whizkins' subscription policies and any notices regarding the Website. By subscribing to the Website, you accept this Agreement and agree to all of the terms, conditions and notices contained or referenced herein.


Electronic Form. By subscribing to the Website, you consent to have this Agreement also provided to you in electronic form and distributed through the Website and posting of such form to the Website.


Withdraw of Consent. You have the right at any time to withdraw your consent to have this Agreement provided to you in electronic form.



  1. Should you withdraw your consent to have this Agreement provided to you in electronic form, we will cease providing services immediately, unless, and until, we receive a signed copy of a non-electronic version of this Agreement, which we will send to you upon request. You hereby agree to forfeit any funds for which services were unavailable as a result of your withdrawal of consent to receive this Agreement in electronic form;

  2. To withdraw your consent and/or request a non-electronic copy of this Agreement, please Contact Us online or send a letter and self-addressed stamped envelope to Whizkins, Attn: Products Squad; and

  3. Your withdrawal of consent shall be effective within a reasonable time after we receive your withdrawal notice described above. Your withdrawal of consent will not affect the legal validity or enforceability of this Agreement provided to, and electronically signed by, you prior to the effective date of your withdrawal.


Access and Retention. In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program. Via, the Website, we will notify you of any changes in the hardware or software requirements needed to access and/or retain this Agreement that create a material risk that you will not be able to continue to access and/or retain this electronic Agreement.


Eligibility, Subscription and Account


The Sites are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Sites under the supervision of a parent or legal guardian who agrees to be bound by this Agreement and be the primary name on the membership account.  Users age 18 or older may become a Subscriber of the Website at no cost. As a Subscriber, you will have the ability to participate in some, but not all, of the features and services available within the Website. In order to participate in certain areas of our Sites, you will need to subscribe to a specific type of membership account that provides you access to those certain areas. You hereby agree to (a) create only one account; (b) provide accurate, truthful, current and complete information when creating your account; (c) maintain and promptly update your account information; (d) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (e) promptly notify Whizkins if you discover or otherwise suspect any security breaches relating to the Sites; (f) promptly pay in full any subscription fees on or before the beginning of your billing cycle; and (g) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.  By subscribing to the Website, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.


Term


This Agreement will remain in full force and effect while you are subscribed to the Website. You may terminate your subscription at any time, for any reason, by either sending Whizkins written notice of termination to Whizkins, Attn: Products Squad, or emailing us at Contact Us with subject line "Cancellation Request" at least 5 calendar days prior to first day of the next succeeding billing cycle (when counting 5 calendar days, you must include the day you send your request). If you cancel your subscription via the Website, to help Whizkins analyze and improve the Website, you may be asked to provide a reason for your cancellation. You may bypass this brief cancellation survey page, if any, and continue the cancellation process by clicking through to continue the cancellation. If you properly provide written notice of your subscription cancellation as required herein, your subscription will remain active until the end of your then-current subscription period (that is, the subscription period through which you had paid prior to your termination). In the event you fail to provide notice as required herein, your subscription will remain active until the end of your then-current subscription period and the next succeeding subscription period, and you hereby agree to be billed and pay for only the next succeeding subscription period at the same rate then in effect at the time you provided notice of cancellation. IN OTHER WORDS, IF YOU DO NOT PROVIDE TIMELY WRITTEN NOTICE, EITHER VIA EMAIL OR U.S. MAIL, YOUR SUBSCRIPTION WILL REMAIN ACTIVE FOR THE REST OF THE BILLING PERIOD IN WHICH YOU PROVIDE NOTICE TO WHIZKINS AND THE FOLLOWING BILLING PERIOD, AND YOU AGREE TO PAY OUT THE REMAINING BILLING PERIOD IN WHICH WHIZKINS RECEIVED THE TARDY CANCELLATION NOTICE AND PAY FOR THE FOLLOWING NEXT BILLING PERIOD AT THE SAME SUBSCRIPTION RATE THAT WAS IN EFFECT IN THE MONTH IN WHICH YOU SUBMITTED THE CANCELLATION NOTICE.


Termination


Notwithstanding any of these Terms of Service, Whizkins reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites and to block or prevent your future access to, and use of, the Sites. Whizkins may terminate your subscription by sending notice to you at the email address you provide in your subscription or such other email address as you may later provide to Whizkins. If Whizkins terminates your subscription because you have breached this Agreement, you will not be entitled to any refund of unused subscription fees. All decisions regarding the termination of accounts shall be made in the sole discretion of Whizkins. Whizkins is not required to provide you notice prior to terminating your subscription. Whizkins is not required, and may be prohibited, from disclosing a reason for the termination of your subscription. After your subscription is terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.


Your Interactions with Third-Parties


AS A SUBSCRIBER TO THE WEBSITE, YOU MAY MEET, CONTACT, COMMUNICATE WITH OR OTHERWISE ENCOUNTER CERTAIN THIRD-PARTIES, SUCH AS BUSINESS PROFESSIONALS, ADVERTISERS, AGENTS, MERCHANTS AND OTHER SUBSCRIBERS. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER THIRD-PARTIES YOU MIGHT DIRECTLY OR INDIRECTLY MEET, CONTACT, COMMUNICATE WITH OR OTHERWISE ENCOUNTER THROUGH WHIZKINS. YOU UNDERSTAND THAT WHIZKINS DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS. WHIZKINS ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS SUBSCRIBERS OR OTHER THIRD-PARTY PERSONNEL THAT MIGHT USE THE SITES OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS SUBSCRIBERS OR ANY SUCH THIRD-PARTY PERSONNEL. WHIZKINS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, DECISIONS, OPINIONS OR OTHER ACTS OF OTHER THIRD-PARTIES. WHIZKINS HEREBY RESERVES THE RIGHT, BUT IS NOT REQUIRED, TO CONDUCT ANY INVESTIGATION OR OTHER SCREENINGS ON ANY SUBSCRIBERS, AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS, AND ACT UPON THOSE FINDINGS TO PROTECT OTHER SUBSCRIBERS.


IN NO EVENT SHALL WHIZKINS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER SUBSCRIBERS OR THIRD-PARTY PERSONNEL THAT MIGHT USE THE SITES OR OTHER PERSONS YOU MEET THROUGH THIS SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER SUBSCRIBERS OF THE SOLUTION OR THIRD-PARTY PERSONNEL, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.


Content on the Sites


Proprietary Rights. Whizkins owns and retains all proprietary rights in the Website and any documents, content or other files downloaded from the Website or distributed via email. The Website contains the copyrighted material, trademarks, and other proprietary information of Whizkins, and its licensors, if any. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. 


Reliance on Content, Advice, Etc. Opinions, advice, statements, offers, or other information or content made available through the Website, but not directly by Whizkins, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Whizkins does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Website, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Website. UNDER NO CIRCUMSTANCES WILL WHIZKINS OR ITS AFFILIATES BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO OR BY ANY MEMBERS AND PARTNERS. 


Billing


Billing and Payment. Whizkins bills you through an online account (your "Billing Account"), which may be operated by a third-party supplier, such as PayPal, for your subscription to the Website. Whizkins hereby reserves the right to bill you through alternative forms of communication. You hereby agree to pay Whizkins all charges at the prices you agreed to for the Website by you or other persons (including your agents) using your Billing Account, and you hereby authorize Whizkins to charge your chosen payment provider (your "Payment Method") for the subscription to the Website. You hereby agree to make payment using that selected Payment Method. Whizkins may correct any billing errors or mistakes that it makes even if it has already requested or received payment. This section labeled "Billing" includes any agreements you made with Whizkins on the Website or through any other medium when subscribing to the Website. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, we may in our discretion terminate your account immediately. If we successfully dispute the reversal, and the reversed funds are returned to us, you are not entitled to a refund or to have your account or subscription reinstated. 


Automatic Renewal. Your subscription will continue indefinitely until cancelled by you as described in above section entitled “Term” or in this paragraph. Your subscription will automatically continue for an additional billing period, at the price and billing period you agreed to when subscribing. You agree that your account will be subject to this automatic renewal feature. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please send Whizkins written notice of your cancellation at least 5 calendar days prior to the first day of the next succeeding billing period. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current billing period expires. However, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Whizkins to charge your Payment Method now and again at the beginning of any subsequent subscription period. You also authorize Whizkins to charge you for any sales or similar taxes that may be imposed on your subscription payments. Upon the renewal of your subscription, if Whizkins does not receive payment from your Payment Method provider, (i) you hereby agree to pay all amounts due on your Billing Account upon demand, and/or (ii) you agree that Whizkins may either terminate or suspend your subscription and continue to attempt to charge your Payment Method provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). 


Current Information. You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify Whizkins if your Payment Method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made by calling or emailing customer service at Whizkins. Please do not attempt to communicate personal and confidential information via email. If you fail to provide Whizkins any of the foregoing information, you hereby agree that you are responsible for fees accrued under your Billing Account. In addition, you hereby authorize us to obtain updated or replacement expiration dates and card numbers for you credit or debit card as provided by your credit or debit card issuer. 


Reaffirmation of Authorization. Your non-termination or continued use of the Website reaffirms that Whizkins is authorized to charge your Payment Method. Whizkins may submit those charges for payment and you will be responsible for such charges. This does not waive Whizkins' right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Websites. 


Free Trials and Other Promotions. Any free trial or other promotion that provides premium subscription-level access to the Website must be used within the specified time of the trial. You must cancel your subscription before the end of the trial period in order to avoid being charged a subscription fee. If you cancel prior to the end of the trial period and are inadvertently charged for a subscription, please contact customer service at Whizkins to have the charges reversed. 


Using Whizkins Stores


Each Subscriber has the option of opening a Whizkins Store for listing and purchasing products and services. While using or accessing Whizkins Stores you will not:



  1. Post, list or upload content or items in inappropriate categories or areas on our sites;

  2. Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your account status;

  3. Use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;

  4. Fail to pay for items purchased by you, unless the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot contact the seller;

  5. Fail to deliver items sold by you, unless the buyer fails to follow the posted terms, or you cannot contact the buyer;

  6. Manipulate the price of any item or interfere with other user's listings;

  7. Post false, inaccurate, misleading, defamatory, or libelous content;

  8. Take any action that may undermine the feedback or ratings systems (see about our Feedback policies);

  9. Transfer your Whizkins account (including Feedback) and user ID to another party without our consent;

  10. Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;

  11. Distribute viruses or any other technologies that may harm Whizkins or the Website, or the interests or property of Whizkins Subscribers;

  12. Use any robot, spider, scraper or other automated means to access the Website for any purpose;

  13. Bypass our robot exclusion headers, interfere with the working of our Website, or impose an unreasonable or disproportionately large load on our infrastructure;

  14. Export or re-export any Whizkins application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;

  15. Copy, reproduce, reverse engineer, modify, create derivative works from, distribute, or publicly display any content (except for your information) from our sites, services, applications, or tools without the prior express written permission of Whizkins and the appropriate third party, as applicable;

  16. Commercialize any Whizkins application or any information or software associated with such application; or

  17. Harvest or otherwise collect information about users, including email addresses, without their consent. 


We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. 


Account Security


You are responsible for maintaining the confidentiality of the username and password that you designate during the Registration process, and you are fully responsible for all activities that occur under your username and password. You agree to (a) immediately notify Whizkins of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Whizkins will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling your auto-sign in feature if you have linked any email addresses or other applications to your Whizkins account. 


Restriction on Use


The Sites may include interactive areas in which you or other Subscribers may create, post, send or store messages, materials, data, information, text, music, sound, photos, video, graphics, applications, tags, code, links or other items or materials on the Sites ("User Content"). By using the Sites, you agree not to post, upload, transmit, distribute, store, create or otherwise publish through the Sites any of the following:



  1. Unless specifically requested by Whizkins, any "sensitive" personally identifiable information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, social security numbers, credit cards, bank accounts or other financial information, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters);

  2. User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or which threatens our relationships with our employees, partners, customers or suppliers;

  3. User content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and produce such User Content;

  4. User Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity;

  5. Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content;

  6. User Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law;

  7. Viruses, spyware, Trojan horses, easter eggs or any other harmful, disruptive or destructive files; and

  8. User Content that, in the sole judgment of Whizkins, is objectionable, restricts or inhibits any other person from using or enjoying the Sites or which damages the image or rights of Whizkins, other users or third parties.


Whizkins does not control, take responsibility for or assume liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Whizkins liable for any user conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. The interactive areas are generally designed as open and public community areas for connecting and sharing with other people. When you participate in these areas, you understand that certain information and content you choose to post may be displayed publicly. You are solely responsible for your use of the Sites and agree to use the interactive areas at your own risk. 


If you become aware of User Content that you believe violates these Terms of Service, you may report it by contacting us. Enforcement of these Terms of Use, however, is solely in our discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the Terms of Use in other instances. In addition, these Terms of Use do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Sites will not contain any content that is prohibited by these Terms of Use. Although Whizkins has no obligation to screen, edit or monitor any of the User Content posted on the Sites, Whizkins reserves the right, and has absolute discretion, to remove, screen or edit any User Content on the Sites at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any User Content you post or store on the Sites at your sole cost and expense. 


If you are viewing the Sites on a public computer or are otherwise using a computer to which multiple people have potential access, be sure to follow all relevant instructions to ensure you are sufficiently disconnected and logged off the Sites and the computer system you are using to prevent unauthorized User Content. 


Product Sales and Availability


All products or services sold by Whizkins and displayed on the Sites will be delivered only within the United States and, when available, in Canada. All prices for products or offers that are displayed on the Sites are quoted in U.S. Dollars and are valid and effective only in participating stores in the United States. Whizkins reserves the right without prior notice to discontinue or change specifications on products and services offered on the Sites without incurring any obligations. 


Through the Website, Subscribers may open stores of their own for listing products and services.


Listing Terms and Conditions. When listing an item, you agree to comply with any rules we may stipulate for listing products and services that:



  1. You are responsible for the accuracy and content of the listing and item offered.

  2. Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Whizkins can't guarantee exact listing durations.

  3. We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:

  4. Buyer's location, search query, browsing site, and history;

  5. Item's location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;

  6. Seller's history, Detailed Seller Ratings, and Feedback; and

  7. Number of listings matching the buyer's query.

  8. Accordingly, to drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.  

  9. Whizkins' Duplicate Listing Policy may also affect whether your listing appears in search results


Purchase Conditions. When buying an item, you agree to the any rules we may stipulate for buying products and services and that:



  1. You are responsible for reading the full item listing before making a bid or commitment to buy.

  2. You enter into a legally binding contract to purchase an item when you commit to buy an item or if you have the winning bid (or your bid is otherwise accepted).

  3. For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller.

  4. We do not transfer legal ownership of items from the seller to the buyer.


Fees. The fees we charge for using our Website are listed on our Pricing Page. We may change our fees from time to time by posting the changes on the Website 14 days in advance, but with no advance notice required for temporary promotions.


You must have a payment method on file, which may be an email address linked to a PayPal, or other similiar ecommerce or payment processing company, when selling on the Website and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and, for accounts over 180 days past due, deducting the amount owed from your PayPal account balance.) In addition, you will be subject to late fees. Whizkins, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Whizkins reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at Whizkins Corporation, C/O Corporate Legal Department. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Whizkins account, you must contact the collection agency directly.


Abusing Whizkins


Without limiting other remedies, we may, limit, suspend, or terminate our services and user accounts, restrict or prohibit access to, and your activities on, our Services, delay or remove hosted content, remove any special status associated with the account, reduce or eliminate any discounts, and take technical and legal steps to keep you from using our Services if:



  1. We think that you are creating problems or possible legal liabilities;

  2. We think that such restrictions will improve the security of the Whizkins community or reduce our or another Subscriber's exposure to financial liabilities

  3. We think that you are infringing the rights of third parties;

  4. We think that you are acting inconsistently with the letter or spirit of this User Agreement or our policies;

  5. Despite our reasonable endeavors, we are unable to verify or authenticate any information you provide to us; or

  6. You fail to pay us all fees due for our Services by your payment due date. 


When a buyer or seller issue arises we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement and to do the right thing for both buyers and sellers.


Copyright and Limited License


Unless otherwise indicated, the Sites and all content and other materials therein, including, without limitation, the Whizkins logo and all designs, text, graphics, documents, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Site Materials") are the proprietary property of Whizkins or its licensors or users and are protected by U.S. and international copyright laws. 


You are granted a limited, non-sublicensable license to access and use the Sites and Site Materials for personal, informational and shopping purposes only. Such license is subject to the Terms of Service and does not include: (a) any resale or commercial use of the Sites or Site Materials; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Materials; (d) modifying or otherwise making any derivative uses of the Sites and the Site Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Sites, the Site Materials or any information contained therein, except as expressly permitted on the Sites; or (g) any use of the Sites or the Site Materials other than for its intended purpose. Any use of the Sites or Site Materials other than as specifically authorized herein, without the prior written permission of Whizkins, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring in any manner, whether by implication, estoppel or otherwise, any title or ownership of, or exclusive use-rights to, any intellectual property or other right and any goodwill associated therewith. 


You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please provide us with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Sites; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Notice of claims of copyright infringement can be reached as follows: copyright@whizkins.com or Whizkins Legal,.


Copyrights and DMCA Notices


Whizkins respects the intellectual property rights of others. If you believe your work has been copied or used in a way that constitutes copyright infringement, are aware of any infringing material on the Site, or believe any material on the Site infringes any other intellectual property right (including, without limitation, trademark rights and rights to publicity and privacy), please contact Whizkins's designated copyright agent at the address listed below and provide the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) (a "DMCA Notice"):



  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

  2. identification of the copyrighted work(s) that you claim to have been infringed;

  3. a description of where the material that you claim is infringing is located on the Sites;

  4. your address, telephone number, and email address;

  5. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

  6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.


The designated copyright agent for Whizkins will be:


Whizkins Corporation
Attn: Whizkins Legal


If you submit a DMCA Notice hereunder, you shall be deemed a "Complaining Party" for purposes of this Agreement. Please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed. Moreover, this procedure is exclusively for notifying Whizkins that your intellectual property rights have been infringed.


Upon receipt of a written DMCA Notice containing the information as outlined above, Whizkins shall:



  1. Remove or disable access to the material that is alleged to be infringing;

  2. Forward the written DMCA Notice to such alleged infringer ("Alleged Infringer");

  3. Take reasonable steps to promptly notify the Alleged Infringer that it has removed or disabled access to the material.


Pursuant to 17 U.S.C. § 512 et. al, an Alleged Infringer may provide Whizkins's designated copyright agent with a counter notice objecting to the Complaining Party's allegations and Whizkins's removal of the alleged infringing material (a "Counter DMCA Notice"). To be effective, a Counter DMCA Notice must be a written communication provided to Whizkins's designated copyright agent that includes substantially the following:



  1. A physical or electronic signature of the Alleged Infringer;

  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

  3. A statement under penalty of perjury that the Alleged Infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

  4. The Alleged Infringer's name, address, and telephone number, and a statement that the Alleged Infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Alleged Infringer's address is outside of the United States, for any judicial district in which the Fitmark may be found, and that the Alleged Infringer will accept service of process from the person who provided the DMCA Notice or an agent of such person.


Upon receipt of a Counter DMCA Notice containing the information as outlined in a. through d. above, Whizkins shall:



  1. Promptly provide the Complaining Party with a copy of the Counter DMCA Notice;

  2. Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days;

  3. Replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter DMCA Notice, provided Fitmark's Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Alleged Infringer from engaging in infringing activity relating to the material on Fitmark's network or system.


Trademark Information


Whizkins, the Whizkins logo, the owl, Eureka!, whizFind, Igniter, PinPointer, whizOnDemand, the slogan "The Online Marketplace for Small Businesses," the slogan "The Ultimate Small Business Website" and the slogan "Create. Develop. Manage" are trademarks or service marks of Whizkins. All other Whizkins trademarks, service marks, domain names, logos, company names and indicia of origin referred to on the Sites are either trademarks, service marks, domain names, logos, company names or indicia of origin or are otherwise the property of Whizkins or its affiliates or licensors. In countries where any of the Whizkins trademarks, service marks, domain names, logos, company names or indicia of origin are not registered, Whizkins claims other rights associated with unregistered trademarks, service marks, domain names, logos, trade name, company names and indicia of origin. Other product or company names referred to on the Sites may be trademarks of their respective owners. You may not use any trademark, service mark, domain name, logo, company name, trade name or indicia of origin of Whizkins or any third party without permission from the owner of the applicable trademark, service mark, domain name, logo, company name, trade name or indicia of origin. You may contact Whizkins by sending an e-mail or writing to Whizkins USA, to request written permission to use trademarks, indicia of origin and materials on the Sites for purposes other than stated in these Terms of Service or for all other questions relating to the Sites. All rights not expressly granted are reserved.


Commercial Use by Subscribers


The Website is for the personal use of individual Members only and may not be used in connection with any commercial endeavors. Organizations, companies, and/or businesses may become Subscribers and should not use the Service or the Website for any purpose. Illegal and/or unauthorized uses of the Website, including collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Website may be investigated, and appropriate legal action will be taken, including without limitation, civil, criminal, and injunctive redress. Use of the Website is with the permission of Whizkins, which may be revoked at any time, for any reason, in Whizkins’ sole discretion.


License to User Content


You represent and warrant that your User Content is not subject to any confidentiality obligations and that you own and control all of the rights to the User Content or otherwise have the right to grant the rights to Whizkins that you grant herein. Whizkins claims no ownership or control over any User Content, except as otherwise provided herein, on the Sites or in a separate agreement. However, by submitting or posting User Content on the Sites, you grant Whizkins and its designees a worldwide, perpetual, non-exclusive, and royalty free license to use, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the User Content and your name and likeness in connection with such use of your User Content, including, but not limited to, promoting and redistributing part or all of the User Content in any media formats and through any media channels. By posting User Content, you hereby release Whizkins and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your User Content. The licenses you grant to Whizkins by submitting User Content terminate within a commercially reasonable time after you remove or delete your User Content from Whizkins. You understand that Whizkins may retain, but not display, perform or publish, server copies that have been deleted or removed. Whizkins does not endorse any User Content submitted to the Sites by and user or other licensor, and Whizkins expressly disclaims any and all liability in connection with the User Content. Whizkins reserves the right to remove User Content without prior notice.


 


Submission of Ideas


Separate and apart from the User Content you provide, you can submit questions, comments, feedback, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Whizkins, our Sites and our products (collectively, "Ideas"). Ideas, whether posted to the Sites or provided to Whizkins by email or otherwise are entirely voluntary, non-confidential, gratuitous and non-committal. Whizkins shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Ideas for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Do not send us Ideas if you expect to be paid or want to continue to own or claim rights in them; your Ideas might be great, but we may have already had the same or similar idea and we do not want disputes. You hereby agree we are not liable for any damages incurred by the disclosure or use of any information provided by you, and acknowledge that we may be simultaneously or independently, or both, developing features or products that relate, derive or overlap with the Ideas or any other information you provide us.


Links


You are granted a limited, non-exclusive right to create text hyperlinks to the Sites for noncommercial purposes, provided such links do not portray Whizkins in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any obscene, pornographic, sexually explicit or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. In addition, you may not use Whizkins' logo or other proprietary graphics to link to our Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Whizkins trademark, logo or other proprietary information, including the images found at the Sites, the content of any text or the layout/design of any page or form contained on a page on the Sites without our express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Whizkins or any third party. 


Whizkins makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of embedded content, third-party websites accessible via hyperlink or websites linking to the Sites. Such sites are not under the control of Whizkins and Whizkins is not responsible for any embedded content or the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Whizkins and its users may provide these links as a convenience to you, but the inclusion of any link does not imply affiliation, endorsement or adoption by Whizkins of any site or any information contained therein. When you visit other sites via links or embedded content, you should understand that our terms and policies no longer govern and that the terms and policies of those third party sites will now apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from our Sites. 


The Website may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Whizkins has no control over such sites and resources, you acknowledge and agree that Whizkins is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You hereby further acknowledge and agree that Whizkins shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.


Disputes


You are solely responsible for your interactions with other Subscribers and third-parties. Whizkins hereby reserves the right, but has no obligation, to monitor disputes between you and other Subscribers or third-parties.


Privacy Policy


Use of the Website is also governed by our Privacy Policy. Please read the Privacy Policy to understand how Whizkins collects, uses and discloses personally identifiable information from its users.  When you become a Subscriber, you hereby agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to the Whizkins, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us. Please see the Whizkins Privacy Policy for more information regarding these communications.


Customer Service


Whizkins provides assistance and guidance through its customer care representatives. When communicating with our customer care representatives, you may not to be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately. Telephone calls between you and our customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of unused subscription fees.


Advertisements and Promotions; Third-Party Products and Services


Whizkins may display advertisements and promotions from third parties on the Sites or may otherwise provide information about or links to third-party products or services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Whizkins is not responsible or liable for any loss or damage of any sort incurred as the result of such dealings or promotions or as the result of the presence of such non-Whizkins advertisers or third party information on the Sites.


Limitation on Liability


To the maximum extent permitted by applicable law, Whizkins and its officers, directors, employees, shareholders or agents shall not be liable for any direct, indirect, punitive or consequential damages, or any other damages of any kind, including but not limited to loss of income, profits, goodwill, data, contracts, use of money, or loss or damage arising from or connected in any way to business interruption, whether in tort (including without limitation negligence), contract or otherwise, arising out of or in connection with the use of or inability to use the Sites, the content or the materials contained in or accessed through the Sites, including without limitation any damages caused by or resulting from reliance by a user on any information obtained from Whizkins, or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction or unauthorized access to Whizkins' records, programs or services. In no event shall the aggregate liability of Whizkins, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of or inability to use the Sites exceed any compensation you pay, if any, to Whizkins for access to or use of the Sites. Some jurisdictions do not allow the limitation of liability in contracts with consumers, so some or all of these limitations of liability may not apply to you. 


Except in jurisdictions where such provisions are restricted, in no event will Whizkins be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including also lost profits arising from your use of the Website, even if Whizkins has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Whizkins' liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to Whizkins for the Website during the term of your subscription.


Release


If you have a dispute with one or more users or Subscribers, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.


Indemnification


You agree to defend, indemnify and hold harmless Whizkins, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to (a) your use of the Sites; (b) any User Content or Ideas you provide; (c) your violation of these Terms of Service; (d) your violation of any rights of another; or (e) your conduct in connection with the Sites. 


You hereby agree to indemnify and hold Whizkins, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Website in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.


Modification to the Sites


Whizkins reserves the right to modify or discontinue, temporarily or permanently, the Sites or any features or portions thereof without prior notice. You hereby agree that Whizkins will not be liable to you or to any third party for any modification, suspension or discontinuance of the Website.


Amendments to this Agreement


This Agreement contains the entire agreement between you and Whizkins regarding the use of the Website. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. This Agreement is subject to change by Whizkins at any time. If you are a non-subscriber at the time of any change, the revised terms will be effective upon posting on the Website and your use of the Website after such posting will constitute acceptance by you of the revised Agreement. If you are a Subscriber at the time of any change, this Agreement will continue to govern your membership until such time that you renew your subscription as contemplated by the section labeled "Billing". If you continue your subscription, your renewal will constitute acceptance by you of the revised Agreement. Alternatively, if you terminate your subscription at such time, your use of the Website after your termination will constitute acceptance by you of the Agreement. 


Whizkins hereby reserves the right to change or modify this Agreement or any policy or guideline of the Sites, at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to the Sites, and you hereby waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Sites will confirm your acceptance of such changes or modifications; therefore, you should frequently review this Agreement and applicable policies to understand the terms and conditions that apply to your use of our Sites. If you do not agree to the amended terms, you must stop using the Sites.


Disclaimers


This disclaimer is to be read in conjunction with the disclaimer provided at http://www.whizkins.com/legal. If any parts of the disclaimer conflict with this disclaimer, the disclaimer provided at http://www.whizkins.com/legal takes precedence. Whizkins is not responsible for any incorrect or inaccurate content posted on the Website, whether caused by users of the Website or by any of the equipment or programming associated with or utilized in the Website. Whizkins is not responsible for the conduct, whether online or offline, of any user of the Website or subscriber of the Website. Whizkins assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user or Subscriber communications. Whizkins is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Website or combination thereof, including injury or damage to users and/or subscribers or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Website. Under no circumstances will Whizkins or any of its affiliates, advertisers, promoters or distribution partners be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Website, any content posted on the Website or transmitted to subscribers, or any interactions between users of the Website, whether online or offline. The Website is provided "AS-IS" and Whizkins hereby expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Whizkins cannot guarantee and does not promise any specific results from use of the Website.  Accordingly, to the maximum extent permitted by applicable law, Whizkins disclaims all other warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement as to the Sites and the information, content and materials contained therein. 


In addition to the preceding paragraph and other provisions of this Agreement, any advice that may be posted on the Whizkins is for informational, educational and entertainment purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. Whizkins makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Website. If you have specific concerns or a situation arises in which you require professional advice, you should consult with an appropriately trained and qualified specialist. 


Arbitration and Governing Law


Arbitration Agreement. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Website shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Whizkins in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Whizkins any class action, class arbitration, or other representative action or proceeding. 


Notice of Rights. By using the Website in any manner or subscribing to the Website, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Whizkins (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. 


Court Proceedings. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Whizkins (except for small-claims court actions) may be commenced only in the federal or state courts located in [to be determined]. You hereby irrevocably consent to the jurisdiction of those courts for such purposes. 


This Agreement, and any dispute between you and Whizkins, shall be governed by the laws of the state of Delaware without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act. 


Third-party Beneficiaries


You hereby agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. 


Severability


If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. 


Contact Us


Please feel free to contact us with any comments, questions or suggestions you might have regarding the information described in the Sites.