Terms of Service
Updated Feb 6, 2019
Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Terms of this Agreement. If you do not agree to all the Terms of this Agreement, then you may not access or use any of our Services. If these Terms are considered an offer by Whimsical, acceptance is expressly limited to these Terms.
Our Services are not directed to children. Access to and use of our Services is only for those over the age of 13 (or 16 in the European Union). If you are younger than this, you may not register for or use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older (16 years or older in the European Union).
Use of our Services requires a Whimsical.com account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your password secure.
1. Your Whimsical Account
To use Whimsical, you’ll need to create an account, either via Whimsical or through a third-party service such as Google. In the latter case, personal information you provided to that third party, such as your name, email address and other information your privacy settings on that service allow us to access, will be used to create your Whimsical account.
You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account, whether or not you authorized that activity. You must immediately notify Whimsical of any unauthorized uses of your account, or any other breaches of security. Whimsical will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
2. Customer Content
By using Whimsical, you provide us with text, images, and other information (“Customer Content”). You retain full ownership of Customer Content - what belongs to you stays yours.
You can remove Customer Content by deleting it. However, in certain instances, some of Customer Content may not be completely removed (when your data is shared with someone else, for example). We are not responsible or liable for the removal or deletion of any of Customer Content, or the failure to remove or delete such content.
You are solely responsible for Customer Content and indicate that you own or have the necessary rights to all of Customer Content, and that use of Customer Content does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
3. Responsibility of Visitors
Whimsical has not reviewed, and cannot review, all of the material, including computer software, posted to our Services, and cannot therefore be responsible for that material’s content, use or effects. By operating our Services, Whimsical does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful, or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Our Services may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. Our Services may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Whimsical disclaims any responsibility for any harm resulting from the use by visitors of our Services, or from any downloading by those visitors of content there posted.
4. Fees, Payment, and Renewal
- Fees. our Services are free with optional paid upgrades (“Paid Services”). By using a Paid Service, you agree to pay the specified fees, which we’ll bill or charge you for in regular intervals (such as monthly or annually), on a pre-pay basis until you cancel, which you can do at any time via the the workspace subscription settings.
- Payment. If your payment fails or Paid Services are otherwise not paid for on time, we may immediately cancel or revoke your access to the Paid Services. If you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services, we may revoke your access to our Services in general.
- Automatic Renewal. To ensure uninterrupted service, our Paid Services are automatically renewed. This means that unless you cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment mechanism we have on record for you to collect the then-applicable subscription fee (as well as any taxes). Your Paid Services are renewed for the same interval of time. For example, if you purchase a whimsical.com annual plan, you will be charged each year.
- Refunds. While you may cancel a Paid Service at any time, refunds are issued in our sole discretion.
- Fee Changes. We may change our fees at any time. When applicable, we may give you advance notice of the fee changes. If you don’t agree with the fee changes, you can cancel your Paid Service.
5. Content Posted on Other Websites
We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which Whimsical.com links, and that link to Whimsical.com. Whimsical does not have any control over those non-Whimsical.com websites, and is not responsible for their contents or their use. By linking to a non-Whimsical.com website, Whimsical does not represent or imply that it endorses such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Whimsical disclaims any responsibility for any harm resulting from your use of non-Whimsical.com websites and webpages.
6. Content Posted on Other Websites
As Whimsical asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Whimsical.com violates your copyright, you are encouraged to notify Whimsical in accordance with Digital Millennium Copyright Act of 1998. Whimsical will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Whimsical will terminate a visitor’s access to and use of the website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Whimsical or others. In the case of such termination, Whimsical will have no obligation to provide a refund of any amounts previously paid to Whimsical.
7. Intellectual Property
This Agreement does not transfer from Whimsical to you any Whimsical or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with Whimsical. Whimsical, Whimsical.com, the Whimsical.com logo, and all other trademarks, service marks, graphics and logos used in connection with Whimsical.com or our Services, are trademarks or registered trademarks of Whimsical or Whimsical’s licensors. Other trademarks, service marks, graphics and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any Whimsical or third-party trademarks.
We are constantly updating our Services, and that means sometimes we have to change the legal terms under which our Services are offered. If we make changes that are material, we will let you know by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.
Whimsical may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Whimsical.com account (if you have one), you may simply discontinue using our Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Disclaimer of Warranties
Our Services are provided “as is.” Whimsical and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Whimsical nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.
11. Jurisdiction and Applicable Law
Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of our Services will be governed by the laws of the state of Colorado, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Denver County, Colorado.
12. Arbitration Agreement
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
13. Limitation of Liability
In no event will Whimsical, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Whimsical under this Agreement during the twelve (12) month period prior to the cause of action. Whimsical shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
14. General Representation and Warranty
You represent and warrant that your use of our Services:
- Will be in strict accordance with this Agreement;
- Will comply with all applicable laws and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection); and
- Will not infringe or misappropriate the intellectual property rights of any third party.
15. US Economic Sanctions
You expressly represent and warrant that your use of our Services and or associated services and products is not contrary to applicable U.S. Sanctions. Such use is prohibited, and Whimsical reserves the right to terminate accounts or access of those in the event of a breach of this condition.
You agree to indemnify and hold harmless Whimsical, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of our Services, including but not limited to your violation of this Agreement.
This Agreement constitutes the entire agreement between Whimsical and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Whimsical, or by the posting by Whimsical of a revised version.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Whimsical may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.