WHIPSTER Terms of Use

Whipster, Inc.

Effective: June 1, 2017

1. Contractual Relationship

These Terms of Use ("Terms") govern your access or use of the applications, websites, content, products, services, and technology platform (collectively, the “Whipster Platform” made available by Whipster, Inc. and its representatives, affiliates, officers and directors (collectively, "Whipster"). These Terms constitute a legally binding agreement (the “Agreement”) between you and Whipster, Inc. (“Whipster,” “we,” “us” or “our”). In these Terms, the words "including" and "include" mean "including, but not limited to."

By accessing or using the Whipster Platform, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Whipster Platform. These Terms expressly supersede prior agreements or arrangements with you. Whipster may immediately terminate these Terms or the Whipster Platform with respect to you, or generally cease offering or deny access to the Whipster Platform or any portion thereof, at any time for any reason.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH WHIPSTER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

Whipster may amend the Terms from time to time. Such modifications shall be binding on you only upon your acceptance of the modified Agreement. Whipster reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Whipster Platform after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).

Whipster’s collection and use of personal information in connection with the Whipster Platform is described in Whipster's Privacy Statements located HERE.

2. Arbitration Agreement

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Whipster on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Whipster, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Whipster by someone else.

Agreement to Binding Arbitration Between You and Whipster.

You and Whipster agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Whipster Platform at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Whipster, and not in a court of law.

You acknowledge and agree that you and Whipster are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Whipster otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Whipster each retain the right to bring an individual action in small claims court and 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 a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.

Process.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Location and Procedure.

Unless you and Whipster otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Whipster submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator's Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.

Fees.

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Whipster will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes.

Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if Whipster changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing Whipster written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Whipster USA, LLC (the name and current contact information for the registered agent in each state are available online here), or (b) by email from the email address associated with your Account to: change-dr@Whipster.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Whipster in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

3. The Whipster Platform

The Whipster Platform comprise mobile applications (each, an "Application"), which enable users to arrange and schedule transportation, logistics, including with third party providers of such services under agreement with Whipster or certain of Whipster's affiliates ("Third Party Providers"). In certain instances the Whipster Platform may also include an option to receive transportation, logistics and/or delivery services for an upfront price, subject to acceptance by the respective Third Party Providers. Unless otherwise agreed by Whipster in a separate written agreement with you, the Whipster Platform is made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN TRANSPORTATION, LOGISTICS AND/OR DELIVERY SERVICES THROUGH THE USE OF THE WHIPSTER PLATFORM DOES NOT ESTABLISH WHIPSTER AS A PROVIDER OF TRANSPORTATION, LOGISTICS OR DELIVERY SERVICES OR AS A TRANSPORTATION CARRIER.

License.

Subject to your compliance with these Terms, Whipster grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Whipster Platform; and (ii) access and use any content, information and related materials that may be made available through the Whipster Platform, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Whipster and Whipster's licensors.

Restrictions.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Whipster Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Whipster Platform except as expressly permitted by Whipster; (iii) decompile, reverse engineer or disassemble the Whipster Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Whipster Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Whipster Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Whipster Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Whipster Platform or its related systems or networks.

Provision of the Services.

You acknowledge that portions of the Whipster Platform may be made available under Whipster's various brands or request options associated with transportation or logistics, including the transportation request brands currently referred to as "Whipster," "Whipstermobile," etc. You also acknowledge that the Whipster Platform may be made available under such brands or request options by or in connection with: (i) certain of Whipster's subsidiaries and affiliates; or (ii) independent Third Party Providers.

Third Party Services and Content.

The Whipster Platform may be made available or accessed in connection with third party services and content (including advertising) that Whipster does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such Third party services and content. Whipster does not endorse such Third party services and content and in no event shall Whipster be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc. and Google, Inc. will be a third-party beneficiary to this contract if you access the Whipster Platform using Applications developed for Apple iOS or Android-powered mobile devices, respectively. These Third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Whipster Platform in any manner. Your access to the Whipster Platform using these devices is subject to terms set forth in the applicable Third party beneficiary's terms of service.

Ownership.

The Whipster Platform and all rights therein are and shall remain Whipster's property or the property of Whipster's licensors. Neither these Terms nor your use of the Whipster Platform convey or grant to you any rights: (i) in or related to the Whipster Platform except for the limited license granted above; or (ii) to use or reference in any manner Whipster's company names, logos, product and service names, trademarks or services marks or those of Whipster's licensors.

4. Access and Use of the Whipster Platform

User Accounts.

In order to use most aspects of the Whipster Platform, you must register for and maintain an active personal user account ("Account"). Account registration requires you to submit to Whipster certain personal information, such as your name, address, and mobile phone number. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access or use the Whipster Platform. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Whipster in writing, you may only possess one Account.

User Requirements and Conduct.

The Whipster Platform is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Whipster Platform, and you may only access or use the Whipster Platform for lawful purposes. You may not in your access or use of the Whipster Platform cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Whipster Platform, and you agree that you may be denied access to or use of the Whipster Platform if you refuse to provide proof of identity.

Text Messaging and Telephone Calls.

You agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Whipster and its affiliated companies, may include but are not limited to: operational communications concerning your User account or use of the Whipster Platform, updates concerning new and existing features on the Whipster Platform, communications concerning promotions run by us or our third- party partners, and news concerning Whipster and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.

You understand that you may opt out of receiving text messages from Whipster at any time by contacting support@whipstermobile.com. If you do not choose to opt out, Whipster may contact you as outlined in its User Privacy Statement, located HERE

Referrals and Promotional Codes.

Whipster may, in its sole discretion, create referral and/or promotional codes ("Promo Codes") that may be redeemed for discounts on future services and/or a Third Party Provider's services, or other features or benefits related to the Whipster Platform and/or a Third Party Provider's services, subject to any additional terms that Whipster establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Whipster; (iii) may be disabled by Whipster at any time for any reason without liability to Whipster; (iv) may only be used pursuant to the specific terms that Whipster establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Whipster reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Whipster determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of Whipster’s Terms.

User Provided Content.

Whipster may, in Whipster's sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Whipster through the Whipster Platform textual, audio, and/or visual content and information, including commentary and feedback related to the Whipster Platform, initiation of support requests, and submission of entries for competitions and promotions ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Whipster, you grant Whipster a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Whipster's business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Whipster the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Whipster's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Whipster in its sole discretion, whether or not such material may be protected by law. Whipster may, but shall not be obligated to, review, monitor, or remove User Content, at Whipster's sole discretion and at any time and for any reason, without notice to you.

Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Whipster Platform. Your mobile network's data and messaging rates and fees may apply if you access or use the Whipster Platform from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Whipster Platform and any updates thereto. Whipster does not guarantee that the Whipster Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the Whipster Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

5. Disclaimers; Limitation of Liability; Indemnity.

DISCLAIMER.

THE WHIPSTER PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." WHIPSTER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, WHIPSTER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE WHIPSTER PLATFORM OR ANY SERVICES THROUGH THE USE OF THE WHIPSTER PLATFORM, OR THAT THE WHIPSTER PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. WHIPSTER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.

WHIPSTER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE WHIPSTER PLATFORM, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF WHIPSTER, EVEN IF WHIPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WHIPSTER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE WHIPSTER PLATFORM OR YOUR INABILITY TO ACCESS OR USE THE WHIPSTER PLATFORM; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF WHIPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHIPSTER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND WHIPSTER'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT WHIPSTER HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, WHIPSTER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON WHIPSTER’S CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity.

You agree to indemnify and hold Whipster and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Whipster Platform obtained through your use of the services; (ii) your breach or violation of any of these Terms; (iii) Whipster's use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.

6. Other Provisions

Choice of Law.

These Terms are governed by and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Florida to assert claims under Florida law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Florida law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Florida law to you if you do not otherwise reside in Florida. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.

Claims of Copyright Infringement.

Claims of copyright infringement should be sent to Whipster's designated agent. Please visit Whipster's web page HERE for the designated address and additional information.

Notice.

Whipster may give notice by means of a general notice on the Whipster Platform, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Whipster, with such notice deemed given when received by Whipster, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o Whipster, Inc. The name and current contact information for the registered agent in each state are available online HERE.

General.

You may not assign these Terms without Whipster's prior written approval. Whipster may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Whipster's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Whipster or any Third Party Provider as a result of this Agreement or use of the Whipster Platform. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Whipster's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Whipster in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.