This contract (the “Terms”) governs any use by you of CreateWhimsy.com (the “Site”) and all of the products, software, services, mobile applications, content and web sites (collectively, the “Services”) offered by Create Whimsy (the “Company”), globally, in existence now or in the future. If you don’t agree to these Terms, please don’t use Create Whimsy. Please read these Terms carefully before using the Site.
By accessing the Site and/or using any of the Services, you agree that you are 13 years of age or older and agree to be bound by all of the Terms and Conditions of this Agreement. Create Whimsy reserves the right in our sole discretion to change, modify, add, or delete portions of this Notice at any time. We will provide notice of such changes only by posting the updated Notice on our Site and changing the “last updated” date listed above. This Notice applies exclusively to your access to interaction with, and use of, this Web site and does not alter in any way the terms or conditions of any other agreement you might have with the Company for products, services, or otherwise.
We encourage you to review our Notice each time you visit our Site to see if it has been updated since your last visit. This Notice, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Create Whimsy without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Notice, together with the Privacy Policy and any amendments and any additional agreements you may enter into with Create Whimsy in connection with the Services, shall constitute the entire agreement between you and Create Whimsy concerning the Services. If any provision of this Notice is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of this Notice will remain in full force and effect. No waiver of any term of this Notice shall be deemed a further or continuing waiver of such term or any other term, and Create Whimsy’s failure to assert any right or provision under this Notice shall not constitute a waiver of such right or provision. If you have any questions regarding the use of the Site, please email us. direct them to hello@createwhimsy.com
Description of Services
- The Services include access to a rich collection of resources, including various communications tools, forums, marketplace services, search services, and personalized content which may be accessed through any various medium or device now known or hereafter developed.
- Unless explicitly stated otherwise, any new features that augment or enhance the current Services, shall be subject to the Terms. You understand and agree that the Service is provided “AS-IS” and “AS-AVAILABLE” that the Company assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Service.
2. Eligibility/Registration
- You may use the Services only if you can form a binding contract with Create Whimsy, and only in compliance with these Terms and applicable laws. When you create your Create Whimsy account, you must provide us with accurate and complete information. Any use or access by anyone under the age of 13 is prohibited. If you open an account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. Some of our Products may be software that is downloaded to your computer, phone, tablet, or other device. You agree that we may automatically upgrade those Products, and these Terms will apply to such upgrades.
- You agree that you will not engage in any activity that, in the Company’s sole judgment, interferes with or disrupts the Services, the servers and networks which are connected to the Services, or the activities of others on the Site or the quiet enjoyment of others on the Site. Your failure to comply with this requirement may result in immediate suspension of your right to access one or more of the Services. You acknowledge and agree that in the event of such suspension, you may be prevented from accessing the Services, your account details or any files or other Content contained in your account.
- In order to use certain of the Services, you may have to first register by providing your real name, address, phone number, e-mail address, and/or other relevant information, as appropriate. By registering, you represent that you have all requisite right, power and authority to bind yourself to any applicable agreement(s) and to perform your obligations thereunder. If you are acting on behalf of a company, you represent that you are authorized to bind your company. You agree to provide accurate and complete information, and to update such information as necessary to keep it up-to-date and accurate. The Company reserves the right to review all registration applications, and to accept or reject any applicant(s) in its sole judgment. You may not transfer or assign your registration to any other party.
- You are solely responsible for maintaining the confidentiality of any password associated with any account you use to access the Services and for any and all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, or of any other breach of security you must notify the Company immediately at hello@createwhimsy.com. You understand that through your use of the Services you consent to the Company’s collection and use of your registration data and certain other information about you, all as set forth in the Company’s Privacy Policy.
- The Company may access, preserve, and/or disclose your account information and/or Content if required to do so by law, or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce the Terms; (iii) respond to claims that any pattern or Content violates the rights of third parties, (iv) respond to your requests for customer services, or (v) protect the rights, property, or personal safety of the Company, its users, and/or the public.
3. Fees
- Certain of the Services may require the payment of fees to the Company or other users. Any such fees, and acceptable methods of payment, will be detailed in the relevant agreement, rules or guidelines governing such Service(s).
4. Acceptable Behavior
- Without limiting any other provision of these Terms, you agree that you will not:
- upload, post, email, transmit or otherwise make available any Content (as defined in Section 7) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, a Company official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through a Service;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- act in a manner that negatively affects other users’ quiet enjoyment of the Services;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, including any regulations having the force of law;
- “stalk” or otherwise harass another; and/or
- collect or store personal data about other users, except as is explicitly provided for in any applicable agreement or guidelines governing one or more of the Services;
- set up additional account(s) to be used for deceptive purposes.
- copy or adapt the HTML or other code that Create Whimsy uses to generate its pages. This code is also protected by Create Whimsy’s copyright and other intellectual property rights.
- violate or attempt to violate the security of the Sites or use the Sites to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any user of the Sites, host or network, including, without limitation, via means of submitting a virus to the Sites, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Sites, (d) sending unsolicited email, including promotions and/or advertising of products or services, or (e) forging any Company packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. The Company may investigate violations of the Terms and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
5. Linking to the Site. We welcome links to the Create Whimsy web site, but any link must not:
- frame or create a browser or border environment around the Web Site;
- imply that Create Whimsy is endorsing your web site or your products or services;
- misrepresent your relationship with Create Whimsy;
- present false information about products or services on the Site;
- use our trademarks or logos without prior permission from us; and
- contain content that we might consider distasteful or offensive.
6. Content. Create Whimsy allows you to post content, including photos, comments, links and other materials. Anything that you post or otherwise make available on our Products is referred to as “User Content”.
- By submitting, disclosing, or offering any User Content including stories, images, photograph, video, comments, feedback, suggestions, ideas, notes, drawings, concepts and other information, content or material, or other items to Create Whimsy either online or offline and whether or not solicited by Create Whimsy, you hereby grant to Create Whimsy an irrevocable, nonexclusive, perpetual, worldwide, royalty-free right and license to use, display, publicly perform, modify, reproduce, publish, distribute, make derivative works of, and sublicense, and otherwise commercially and non-commercially share your submitted items and all copyright, trade secret, trademark, or other intellectual property rights therein, in any manner or medium now existing or hereafter developed (including but not limited to print, film, or electronic storage devices), and the exclusive right to use, display, publicly perform, modify, reproduce, publish, distribute, make derivative works of, sublicense, and otherwise share all such materials on commercial websites, without compensation of any kind to you or any third party.
- Create Whimsy or its affiliates or licensors solely and exclusively own all rights, title and interest in all Website materials, including, without limitation, the Create Whimsy logo, design, text, copy, graphics, videos, other files and the selection and arrangement thereof (collectively, “Content”).
- You grant Create Whimsy and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute your User Content.
- We don’t prescreen User Content, but we reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies.
- You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk. The Company shall have the right, but not the obligation, to remove any Content that is violative of any law, regulation or guideline, or that it deems offensive, in its sole discretion.
- You are solely responsible for any Content posted by you on the Site and assume all risks associated with it, including accuracy, or claims relating to intellectual property or other legal rights. By submitting, you represent that you own or have the necessary rights to post the content on Create Whimsy, and that doing so does not conflict with any other licenses you may have been granted. By posting or transmitting such Content, you give the Company a license to publish and distribute such Content though the Services and to incorporate such Content into other works in any format or medium now known or later developed. You are solely responsible for protecting and enforcing any intellectual property and other rights in your Content; the Company shall have no obligation to do so on your behalf.
- All content saved by a member will be public and viewable by all.
- Following the termination or deactivation of your account, or if you remove any User Content from Create Whimsy, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. Furthermore, Create Whimsy and its users may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform and distribute any of your User Content that other users have stored or shared through Create Whimsy.
- iWe value hearing from our users, and are always interested in learning about ways we can make Create Whimsy a better community. If you choose to submit comments, ideas or feedback, you agree that we are free to use them without any restriction or compensation to you. By accepting your submission, Create Whimsy does not waive any right to use similar or related Feedback previously known by Create Whimsy, or developed by its employees or obtained by sources other than you.
7. Copyright Policy
- Create Whimsy has adopted and implemented the Create Whimsy Copyright Policy in accordance with the Digital Millennium Copyright act.
- We have a policy of terminating repeat copyright infringers in appropriate circumstances.
8. Security
- At Create Whimsy, we care about the security of our users. While we work to protect your content and account, Create Whimsy cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account.
9. Third-Party Links, Sites, and Services
- The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company 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 further acknowledge and agree that the Company 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 use of or reliance on any such content, goods or services available on or through any such site or resource.
- We use third parties like Facebook to create and authorize user accounts. By using those third-party services, you agree to their terms of use, privacy policy and other agreements between you and them.
10. Use and Storage of Information. You acknowledge that the Company may establish general practices and limits concerning use of the Site and/or any Service, including without limitation, the maximum number of days that messages are stored, message board postings, patterns or other uploaded Content will be retained by a Service, the maximum number of messages that may be sent from or received by an account on a Service, the maximum size of any message or board posting that may be sent from or received by an account, the maximum disk space that will be allotted on the Company’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access a Service given in a given period of time. You agree that the Company has no responsibility or liability for the deletion or failure to store any messages and other communications, including but not limited to message board posts, patterns, or other Content maintained or transmitted by a Service.
- You acknowledge that the Company reserves the right to log off accounts that are inactive for an extended period of time. All accounts will be reviewed and approved by the Company. You further acknowledge that the Company reserves the right to modify these general practices and limits from time to time, in its sole discretion.
- You acknowledge and agree that the Company may access, preserve, and disclose your account information and/or Content if required to do so by law, or, if it believes, in good faith, that such access, preservation, or disclosure is reasonably necessary to (a) comply with legal process, (b) enforce these Terms, (c) respond to claims that any Content violates the rights of third parties, (d) respond to your request for customer services; or (e) protect the rights, property, or personal safety of the Company, its users, and the public.
11. Indemnity
- You agree to indemnify and hold the Company and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), in any way related to (a) your access to or use of our Products, (b) your User Content, or (c) your breach of any of these terms, or (d) your violation of any rights of another user.
12. Termination of Your Account
- Create Whimsy may terminate or suspend this license at any time, with or without cause or notice to you. Upon termination, you continue to be bound by these Terms.
13. Disclaimer of Warranties. You expressly acknowledge and agree that:
- Your use of the Service is at your sole risk. The Products and all included content are provided on an “as is” and “as available” basis without warranty of any kind, whether express or implied.
- The Company makes no warranty that (i) a Service will meet your requirements; (ii) a Service will be uninterrupted, timely, secure or error-free; (iii) the results that may be obtained from the use of a Service will be accurate or reliable; (iv) the quality of any products, services, information or other material purchased or obtained by you through a Service will meet your expectations; and (v) any errors in the Site, a Service or any software will be corrected.
- Create Whimsy takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or transmits using our Products. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.
- The Company does not warrant that the Service will operate error-free or that the sites or its server are free of computer viruses or other harmful mechanisms. Any material downloaded or otherwise obtained through the use of the Service is accessed at your own discretion and risk, and you will be solely responsible for any damage to your or another’s computer system or loss of data that results from the download of any such material.
- No advice or information, whether oral or written, obtained by you from the Company or through or from the Service shall create any warranty not expressly stated in these Terms.
14. Limitation of Liability
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, CREATE WHIMSY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE PRODUCTS; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL CREATE WHIMSY’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PRODUCTS EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100).
15. Miscellaneous
- Entire Agreement. These Terms and any agreements, guidelines, policies etc, incorporated by reference herein or applicable to particular Services constitute the entire agreement between you and the Company and govern your use of the Services and Content, superseding any prior agreements between you and the Company with respect to the Services and Content.
- Proprietary Rights You acknowledge and agree that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content or other information presented to you through the Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by the Company, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or any Content, whether in whole or in part.
- i. Unless you have agreed otherwise in writing with the Company, nothing in these Terms gives you a right to use any of the Company’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
- ii.Without limiting the foregoing, the Create Whimsy logo, trademarks, and any other service marks and other Company logos and product and service names are trademarks of the Company. You agree that you shall not display or use these marks in any manner, and that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
- Governing Law; Disputes; Consent to Personal Jurisdiction. This Agreement will be governed by the Laws of the State of Washington without regard to its principles regarding conflicts of law. In the event of any dispute between you and the Company, you agree to take all reasonable steps to resolve the dispute quickly and efficiently first, through good faith negotiations, and then, through formal mediation or arbitration if requested by the Company in its sole discretion. In the event of a dispute that cannot be resolved in accordance with the foregoing principle, the state and federal courts of Washington shall have exclusive jurisdiction over any matter arising hereunder, and you hereby consent to personal jurisdiction in those. Our Products are controlled and operated from the United States, and we make no representations that they are appropriate or available for use in other locations.
- Waiver and Severability of Terms. The failure of the Company to exercise or enforce any right or provision of these Terms or any agreement shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.
- No Right of Survivorship and Non-Transferability. You agree that your account is non-transferable and any rights to your ID or Content within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
- Any notice under this Agreement shall be sent to hello@createwhimsy.com.
- Limitations Period. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of any Service or these Terms must be filed within one hundred and eighty (180) days after such claim or cause of action arose or be forever barred.
- Severability. If any one or more of the provisions in this Agreement are deemed void as a matter of law, then the remaining provisions will continue in full force and effect.
- Service Levels. The Company does not guarantee continuous, uninterrupted or secure access to the Service or the Site.
- Headings. Section headings are included in the Agreement for convenience only. They are not to be considered a part of this Agreement, and are not intended to be a full and accurate description of the contents hereof.
- Additional Acknowledgments. You acknowledge that:
- You are entering into this Agreement voluntarily and without any duress or undue influence;
- You have carefully read this Agreement and fully understand its terms, consequences, and binding effect;
- You have sought the advice of an attorney of Your choice if so desired prior to entering into this Agreement; and
- You understand that by performing under this Agreement, You agree to be bound by its the terms.