Terms & Conditions
Last Updated: 12/15/15
This agreement constitutes a legal agreement between you ("you", "User", “Requester” or “Whizz”) and Cloudknots LLC. d/b/a WhizzTips ("WhizzTips", “we” or "us"). This Agreement governs your use of our services and platform that facilitates communications between and among Users offered through our website located at www.whizztips.com, as it may be modified, relocated and/or redirected from time to time (the "Site"), and the mobile applications offered by us (the "Apps"). Our services, platform, Site and Apps are collectively referred to as the "Whizztips Platform".
By using or registering with the Whizztips Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to be bound by this Agreement, you will not have any right to use the Whizztips Platform. Whizztips's acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Whizztips Platform, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
- Your agreement that the Whizztips Platform is provided "as is" and without warranty.
- Your agreement that the Whizztips Platform is solely a communications platform providing a method for Professional Services to be booked, that all Professional Services are performed by third parties, and that Whizztips has no liability for any Professional Services or any acts or omissions of third parties.
- Your agreement to release Whizztips from liability based on claims relating to Services and otherwise and your agreement to the limitation of time within which a claim may be brought.
- Your agreement to indemnify Whizztips from claims due to your use, misuse or inability to use the Whizztips Platform, and/or Professional Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Whizztips Platform.
- Your agreement to MANDATORY binding arbitration of any disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim.
- Your agreement that no claims can be adjudicated on a class.
- Your consent to any modifications or amendments to this Agreement.
- Your consent to the collection, use, sharing and transfer of your data as outlined in the Privacy & Policy as updated from time to time.
These Terms are important and affect your legal rights, so please read them carefully
These Terms apply to your access to, and use of, the Whizztips Platform. By accessing or using the Whizztips Platform, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access nor use the Whizztips Platform.
NOTE THAT SECTION 26 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes, we will notify you by revising the date at the top of these Terms and, in some cases, we may provide you with additional notice (such as adding a statement to our website’s homepage or sending you a notification). By continuing to access or use the Whizztips Platform, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Whizztips Platform. If you do not agree to the revised Terms, you may not access or use the Whizztips Platform.
If you have any questions, comments, or concerns about these Terms, please contact us at: email@example.com
1. Our Whizztips Platform
The Whizztips Platform is Solely a Venue for Communications.
The Whizztips Platform is a solely a communications platform for enabling the connection between individuals seeking to obtain services ("Requesters") and/or individuals seeking to provide services ("Whizzes"). Requesters and Whizzes together are referred to as "Users". Those certain services requested by the Requesters, which are to be completed by the Whizzes, are hereinafter referred to as "Professional Services". The Professional Services may include the delivery, assembly or installation of items (“Merchandise”), but shall not be deemed to include the Merchandise itself. Whizztips does not itself provide Professional Services or Merchandise. The provision of all Professional Services is up to the Whizzes, which may be scheduled and negotiated through use of the Whizztips Platform.
WHIZZTIPS DOES NOT INTEND TO PROVIDE ANY PROFESSIONAL SERVICES OR MERCHANDISE ITSELF NOR ACT IN ANY WAY AS A RETAILER OR MANUFACTURER, OR AS PROFESSIONAL SERVICE PROVIDER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES AND/OR MERCHANDISE PROVIDED TO THE REQUESTER BY WHIZZES, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. WHIZZTIPS IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY THIRD PARTY MERCHANDISE PROVIDER OR RETAILER.
While we enable Requesters and Whizzes to search for information and communicate with one another, we are not responsible for monitoring such information and communications. Other than providing Requesters and Whizzes access to the Whizztips Platform, we do NOT provide any actual services, Professional Services or Merchandise to either Requesters or Whizzes and we are not a party to transactions that may occur between Requesters and Whizzes. In addition, we are not responsible for and we expressly disclaim all direct or indirect liability that may result from information made available to or by Requesters or Whizzes and the conduct of Requesters and Whizzes, whether online or offline. WhizzTips does not sponsor, endorse, recommend nor approve of any Whizz, nor do we make any representations or warranties about the quality, timing, efficacy or legality of the products or services they offer or provide. Additionally, we cannot and do not represent or warrant that any Whizz is licensed, qualified, bonded, insured or capable of performing any product or service, and we make no representations or warranties about the suitability, reliability or accuracy of the products and services they provide.
Whizztips may check the backgrounds of Whizzes via third party background check services. However, each Requester should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person whom you do not know. BY USING THE WHIZZTIPS PLATFORM, THE REQUESTER AGREES TO HOLD WHIZZTIP FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE PROFESSIONAL SERVICES OR ANY CONDUCT BY ANY WHIZZ. WHIZZTIPS IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING WHIZZES, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY PROFESSIONAL SERVICES.
Whizztips provides a software platform which allows Requesters to connect with independent Whizzes. Whizztips is not the employer of any Whizz. You acknowledge that we do not supervise, direct, or control a Whizz’s work or Professional Services performed in any manner. A Whizz provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of Whizztips for any purpose whatsoever.
2. Privacy & Policy
Please refer to our Privacy & Policy at http://www.whizztips/privacy for information about how we collect, use and disclose information about you.
3. Additional Terms
Additional terms and policies (“Additional Terms”) may apply to specific portions of the Whizztips Platform. In the event Additional Terms apply to your use of the Whizztips Platform, we will provide notice of such terms and your continued use of the relevant portions of the Whizztips Platform will constitute your agreement to these Additional Terms. Unless indicated otherwise, if there is a conflict between these Terms and the Additional Terms, the Additional Terms will govern.
4. Eligibility, Registration and Accounts
The Whizztips Platform are not targeted towards, nor intended for use by, anyone under 18 years of age. If you are under the age of 18, you may not use the Whizztips Platform. By using the Whizztips Platform, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the Country you are using our Whizztips Platform in, (c) have not been previously suspended or removed from the Whizztips Platform, or engaged in any activity that could result in suspension or removal from the Whizztips Platform, (d) do not have more than one WhizzTips account, and (e) have full power and authority to enter into these Terms and in so doing will not violate and laws, regulations or any other agreement to which you are a party.
In order to access and use certain areas or features of the Whizztips Platform, you will need to register for a WhizzTips account. By creating an account, you agree (a) to provide accurate, current and complete account information, (b) to maintain and promptly update your account information as necessary, (c) that you are the sole authorized user of your account, (d) to maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, (e) that you are solely and fully responsible for all activities that occur under your password or account and (f) that you will immediately notify us if you discover or otherwise suspect any security breaches related to the Whizztips Platform or your account.
Proof of Identity or Age. You will provide us with such proof of identity or age as we may reasonably request from time to time.
Text Messages and Phone Calls. By providing your phone number and using the Whizztips Platform, we may, to the extent permitted by applicable law, use your mobile phone number for calls and, if such phone number is a mobile number, for text (SMS) messages, in order to assist with facilitating the requested Professional Services. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages we send you. You may opt-out of receiving text (SMS) messages from us by replying with the word "STOP" to a text message from us. You acknowledge that opting out of text (SMS) messages may impact your ability to use the Whizztips Platform.
Emails. Whizztips may send you confirmation and other transactional emails regarding the Professional Services. Whizztips may also send you emails about services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
5. Payments; Money Back Guarantee; Claims.
a. Payments. Users of the Whizztips Platform contract for Professional Services directly with other Users. Whizztips is not a party to any contracts for Professional Services. The Whizztips Platform facilitates these contracts by supplying a medium through which Requesters can connect with Whizzes, schedule Professional Services, and make payments for Professional Services ("Payments"). Requesters are obligated to pay in advance for the Professional Services and/or Merchandise they order through the Whizztips Platform. We will charge the Requester's Paypal account or credit card according to the amount the Requester and Whizz have agreed to on the Whizztips Platform with respect to all Professional Services and/or Merchandise, the Requester has ordered, and for all purchases and payments for reimbursement costs, fees or expenses associated with a Professional Service, and the Requester hereby authorizes us to charge the credit card or Paypal account on file in the Requester's Whizztips Platform account for such amounts. Seventy-two (72) hours after a Professional Service is completed, if there is no complaint by the Requester, we will mark the Professional Service as closed. If the Requester has agreed with the Whizz to increase or reduce the cost or fees of the Professional Services or, the Requester bears the responsibility for notifying Whizztips. All Payments by Requesters must be made through the Whizztips Platform. Any Payments paid outside of the Whizztips Platform are not subject to our Money-Back Guarantee. Except for the Money-Back Guarantee in Section no refunds or credits will be provided once the Requester's credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made. While we will use commercially reasonable efforts to ensure the security of all Paypal, credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Requesters will be liable for all transaction taxes on the Professional Service(s) provided (other than taxes based on Whizztips's income).
b. Money-Back Guarantee. If the Requester ordered and paid for a Professional Service through the Whizztips Platform and the Professional Service has already been performed, and if the Requester is not satisfied with that Professional Service, then the Requester may be eligible for our Money-Back Guarantee provided that the Requester reports the issue within seventy-two (72) hours of the Professional Service appointment by submitting a dispute on the Whizztips Platform. Once Whizztips receives a report of a dispute, Whizztips will investigate whether the Professional Services were performed satisfactorily. Whizztips will be the sole determiner of whether the Professional Services were satisfactorily performed or partially performed. In making its determination Whizztips will only use communications between the Requester and the Whizz made through the Whizztips Platform and will not consider nor use in its determination any extraneous communications between or among the Requester or Whizz. The Money-Back Guarantee is as follows: based upon Whizztips’s sole determination, we will either fully or partly refund the Requester's Payment amount for such Professional Service. The amount to be refunded will be solely determined by Whizztips, but in all circumstances the amount of Whizztips's Money-Back Guarantee is limited to any Payment the Requestor made for the Professional Service. Whizztips's Money-Back Guarantee does not apply to any other cost, liability, damage, injury, or claim arising from or in connection with the Professional Services. For clarity, Whizztips’s Money-Back Guarantee does not apply to any payments made for Merchandise, and solely applies to payments made for the Professional Services to deliver and/or assemble the Merchandise, as applicable.
6. Cancellation of Professional Services
a. Policy for Service Cancellation by Requester. Whizztips's cancellation policy for specific Professional Services is as follows: Requesters may cancel their scheduled Professional Service appointments through the Whizztips Platform at any time, subject to the following. If a Requester cancels more than one (1) hour before a scheduled Professional Service appointment, Requester will be refunded the full charged amount of the Professional Service (exclusive of Merchandise, if any). If a Requester cancels within one (1) before a scheduled Professional Service appointment, the Requester will be charged the full amount of the Professional Services. A Professional Service appointment may be canceled through the Whizztips Platform or through our website at Whizztips.com/help and any attempt to cancel an appointment verbally, telephonically, electronically or by any other form of direct or indirect communication with a Whizz shall be of no effect.
b. Policy for Service Cancellation by Whizz. When a Professional cancels a scheduled Professional Service appointment, the Whizztips Platform generally notifies the Requester and makes the Requester's Professional Service request available for another Professional to select. However, Whizztips cannot guarantee that a canceled Professional Service appointment will be selected by another Professional and rescheduled or that the Professional Service request will be completed. Whizzes who cancel a scheduled Professional Service appointment may incur fees or penalties included but not limited to, negative feedback, cancellation of future scheduled Professional Services appointments, termination or suspension of access to the Whizztips Platform, or termination or suspension of their Whizztips account.
7. License to Access and Use Our Whizztips Platform and Content
Unless otherwise indicated by us, the Whizztips Platform and all content and other materials contained therein, including, without limitation, the WhizzTips & CloudKnots logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 14), other files and the selection and arrangement thereof (collectively, “WhizzTips Content”) are the proprietary property of WhizzTips, our licensors or Users, as applicable, and are protected by U.S. and international copyright and trademark laws. The term WhizzTips Content, as used in these Terms, does not include third-party trademarks, intellectual property or other content or material owned by third parties and not covered under a license with WhizzTips or materials that are in the public domain.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Whizztips Platform and WhizzTips Content. However, such license is subject to these Terms and does not include: (a) any resale or commercial use of the Whizztips Platform or the WhizzTips Content therein; provided, however, that Whizzes are permitted to use the Whizztips Platform for their own commercial purposes, but not for the commercial purposes of a third party other than Whizz; (b) the collection and use of any product or service listings, pictures, or descriptions; (c) the distribution, public performance or public display of any WhizzTips Content; (d) modifying or otherwise making any derivative uses of the Whizztips Platform or the WhizzTips Content 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 Whizztips Platform, the WhizzTips Content or any information contained therein, except as expressly permitted on the Whizztips Platform; (g) any use of the Whizztips Platform or the WhizzTips Content which may be prohibited by law; (h) any use of the Whizztips Platform or the WhizzTips Content which may breach or violate an agreement between User or Whizz and any third party; and (i) any use of the Whizztips Platform or the WhizzTips Content other than for their intended purposes. Any use of the Whizztips Platform or WhizzTips Content other than as specifically authorized herein, without our prior written permission, 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 by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary or intellectual property rights of WhizzTips or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Whizztips Platform and WhizzTips Content may include software components provided by WhizzTips or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
8. The App / Mobile Devices
a. The Whizztips Platform may allow you to access our services, download our Apps, upload content to the Whizztips Platform, and receive messages on your mobile or tablet device (collectively "Mobile Features"). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. Whizztips is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. Whizztips reserves the right to terminate the use of the Apps or any other aspect of the Whizztips Platform should you be using the Apps or the Whizztips Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Whizztips reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (i) this Agreement is valid between you and Whizztips only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Whizztips, not Apple, is solely responsible for the App Store Sourced Application and the Whizztips Platform Content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and Whizztips, Whizztips and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
9. Modifications to the Whizztips Platform.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Whizztips Platform or any content or information on the Whizztips Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the Whizztips Platform.
10. Intellectual Property Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Whizztips Platform by, or terminating the accounts of, individuals who infringe the intellectual property rights of others. If you believe that anything on the Whizztips Platform infringes any copyright or trademark that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Lombard & Geliebter LLP
Address: 305 Broadway, 7th Floor,New York, NY 10007
Phone: +1 646 308 1607
Fax: + 1 646 349 5567
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing. As more fully set forth below in Section 22 You further agree to indemnify and hold us harmless in the event of any claim, action, judgment or liability against us arising from your submission to us of a claim of intellectual property infringement.
“WhizzTips”, “CloudKnots”, the WhizzTips or CloudKnots logos and any other CloudKnots product or service names, logos or slogans that may appear on the Whizztips Platform are trademarks owned by us and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “WhizzTips” or any other name, trademark or product or service name of WhizzTips without our prior written permission. In addition, the look and feel of the Whizztips Platform, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of WhizzTips and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Whizztips Platform are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, Whizztips Platform, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by WhizzTips.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Whizztips Platform, provided that such link does not portray WhizzTips or any of our Whizztips Platform in a false, misleading, derogatory or defamatory manner, and provided further that the linking site does not contain any pornographic, sexual, adult-oriented or illegal material or any material that is offensive, inflammatory, harassing, may be considered hate speech or otherwise objectionable. This limited right may be revoked at any time. You may not use a WhizzTips logo or other proprietary graphic or content of WhizzTips to link to the Whizztips Platform without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any WhizzTips trademark, content, logo or other proprietary information, including the images found on the Whizztips Platform, the content of any text or the layout or design of any page, or form contained on a page, on the Whizztips Platform without our express written consent.
WhizzTips makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Whizztips Platform or of websites linking to the Whizztips Platform. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information, content or opinion contained therein. When you leave the Whizztips Platform, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Whizztips Platform.
13. Third Party Content
We may display content, including advertisements and promotions, from third parties through the Whizztips Platform or may otherwise provide information about or links to third-party products or Whizztips Platform (collectively, “Third Party Content”). We do not control, endorse nor adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your business dealings, correspondence with, or other interactions with third parties providing Third Party Content, and any terms, conditions, warranties or representations associated with such dealings and interactions are solely between you and such third parties. WhizzTips is not responsible nor liable in any manner for such dealings and interactions or Third Party Content, nor for any loss or damage of any sort incurred as the result of any such dealings or interactions or as the result of the presence of Third Party Content on the Whizztips Platform.
Links to Other Websites. Links (such as hyperlinks) from the Whizztips Platform to other sites on the Web do not constitute the endorsement by Company of those sites or their content. Such links are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their content. The existence of links on the Whizztips Platform to such websites (including without limitation external websites that are framed by the Whizztips Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites, and not by Company's Terms of Service or Privacy & Policy . You access such third-party websites at your own risk. Company expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Whizztips Platform. You hereby agree to hold Company harmless from any liability that may result from the use of links that may appear on the Whizztips Platform.
As part of the functionality of the Whizztips Platform, you may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Service; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Whizztips Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Whizztips Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Whizztips Platform. You will have the ability to disable the connection between your account on the Whizztips Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device, tablet or computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Service. At your request made via e-mail to firstname.lastname@example.org, Company will deactivate the connection between the Whizztips Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
14. User Content
The Whizztips Platform may include interactive features and areas that allow Whizzes and Requesters to create, post, share, upload to, transmit, distribute, store or otherwise publish content, including, but not limited to project descriptions, blog content, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content” or “User Generated Content”). You understand that User Content is viewable by others using the Whizztips Platform. You agree that you are solely responsible for your User Content and for your use of such interactive features and areas of the Whizztips Platform, and that you use them at your own risk.
- By using the interactive features and areas of the Whizztips Platform, you further agree not to create, post, share, upload to, transmit, distribute, store or otherwise publish through the Whizztips Platform any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts WhizzTips or our Whizztips Platform but fails to disclose a material connection to us, if you have one (for example, if you are an WhizzTips employee or paid blogger);
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that contains any viruses, malware, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Whizztips Platform, or that may expose WhizzTips or others to any harm or liability of any type.
- We do not approve, control nor endorse User Content and we are not responsible or liable for any User Content on the Whizztips Platform. In addition to other disclaimers found in these Terms, we do not endorse nor make any warranties or representations with respect to the accuracy, completeness or timeliness of any User Content posted on the Whizztips Platform. Although we have no obligation to screen, moderate, edit or monitor User Content, we reserve the right, and have absolute discretion, to moderate, monitor, remove, screen or edit User Content posted or stored on the Whizztips Platform at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Whizztips Platform at your sole cost and expense.
15. Rights in User Content
You retain all ownership rights in the User Content you submit to WhizzTips. By submitting or posting User Content to the Whizztips Platform, or to our pages or feeds on third party social media platforms (e.g., WhizzTips’s Facebook page), you hereby grant WhizzTips a nonexclusive, royalty-free, worldwide, perpetual, transferable, irrevocable and fully sublicensable right and license to use, store, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to WhizzTips through the Whizztips Platform or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the proprietary, intellectual property or other rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize WhizzTips to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading nor harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation, intellectual property right or third party right.
16. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, either while using the Whizztips Platform or in performing Professional Services, and that you are solely responsible for your conduct, while accessing or using the Whizztips Platform or performing Professional Services. You agree that you will abide by these Terms and will not:
- Engage in any illegal, harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another User’s account without authorization from such User and WhizzTips;
- Use the Whizztips Platform in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Whizztips Platform or that could damage, disable, overburden or impair the functioning of the Whizztips Platform in any manner;
- Reverse engineer any aspect of the Whizztips Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any WhizzTips Content, area or code of the Whizztips Platform;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Whizztips Platform that you are not authorized to access;
- Develop any third party applications that interact with User Content or the Whizztips Platform without our prior written consent;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Whizztips Platform, extract data or otherwise interfere with or modify the rendering of Whizztips Platform’ pages or functionality;
- Bypass or ignore instructions contained in the robots.txt file, accessible at http://www.WhizzTips.com/robots.txt, that controls all automated access to the Whizztips Platform; or
- Use the Whizztips Platform for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- Requesters agree to treat Whizzes courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Whizzes to enable them to supply Professional Services. Requesters agree to communicate any complaints to us and not to the Whizzes. Requesters agree to comply with our complaint and other policies designated on the Whizztips Platform. Whizz agree to provide Professional Services in accordance with all applicable laws and regulations and with the Agreement.
17. User Reviews
Reviews of Whizzes. You may only post a review (“Review”) of a Whizz if you have first-hand knowledge of the products and/or services provided by such Whizz. You may not post Reviews about a Whizz or any of their products or services if you are (a) affiliated with or employed by the Whizz (including but not limited to employers, employees, agents and contractors of the Whizz); (b) a competitor of the Whizz; or (c) related to the Whizz in any way. By posting a Review, you acknowledge and agree that it is accurate, truthful and complete.
You may only post a Review of a Requester water if you are a Whizz and have conducted a transaction with that Requester on the Whizztips Platform and the Review must concern and be limited to information regarding that transaction. You may not post Reviews about a Requester if you are (a) affiliated with or employed by the Requester (including but not limited to employers, employees, agents and contractors of the Requester); (b) a competitor of the Requester; or (c) related to the Requester in any way. By posting a Review, you acknowledge and agree that it is accurate, truthful and complete.
In the event that that Whizztips determines that a User Review is not accurate, truthful or complete, or is otherwise in violation of the Agreement, it may take whatever corrective measures it in its sole determination deems necessary including, but not limited to, modification or deletion of the User Review or suspension or deletion of the reviewing User’s account. Submission of any Review in violation of this Agreement will be deemed a material breach of the Agreement.
Separate and apart from User Content or Reviews, you may submit questions, comments, suggestions, ideas, original or creative materials or other information about WhizzTips and the Whizztips Platform (collectively, “Feedback”). Feedback, whether submitted through the Whizztips Platform or otherwise, is nonconfidential and shall become the sole property of WhizzTips. WhizzTips shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
19. Additional Provisions Applicable to Whizzes
In addition to the other provisions of these Terms, the following are additional provisions that apply specifically and solely to Whizzes.
19.1 Representations and Warranties
User Representations and Warranties. By using the Whizztips Platform, you represent and warrant that your use of the Whizztips platform: (a) will not contain or transmit to Whizztips or any Users any false, inaccurate, incomplete or misleading information; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or include or a contain any child pornography or any information harmful to minors; (g) will not contain or transmit any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
Whizz Representations and Warranties. By using the Whizztips Platform as a Whizz, you represent and warrant that: (a) you possess the qualifications, experience and skills necessary to provide the services that you are offering through the Whizztips Platform and that you will perform such services with the degree of skill and care that is required by current good and sound professional practices in accordance with any applicable industry standards; (b) you have, and will continue to maintain, all valid licenses, permits, certifications and authorizations required by all applicable authorities (whether governmental or trade groups or associations) for any services you solicit, accept or perform; (c) you will not collect, use, rent or sell information about Users that you obtain directly or indirectly from WhizzTips for purposes other than to provide the services to such Users; and (d) all information you provide related to your qualifications, experience, skills, licenses, certifications and authorizations as well as other information you provide in relation to any services you offer, solicit or provide is accurate, current and complete.
19.2 Your Relationship to Whizztips
You acknowledge that you are neither an independent contractor nor employee of Whizztips, and that no agency, partnership, independent contractor, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between you and WhizzTips. You shall be solely responsible for the supervision, direction, control, compensation, benefits, and withholdings of all of your employees, independent contractors or agents. Your relationship to Whizztips is limited to your status as a Whizz User utilizing the Whizztips Platform to communicate with other Users.
To the extent you receive any confidential information of WhizzTips in connection with your use of the Whizztips Platform, including but not limited to information concerning fees, marketing plans, financial results, Users, Requesters, Whizzes, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by WhizzTips which is not generally known to the public (“Confidential Information”), you agree to protect such information against any unauthorized use or disclosure and to use such information solely for the purposes for which it was disclosed to you. For purposes of clarification and not limitation, you are not permitted to disclose Confidential Information or any information about Users, Requesters or Whizzes that you collect through your access to or use of the Whizztips Platform to any third party without the express written consent of WhizzTips. You acknowledge that Confidential Information is a valuable, special and unique asset of Whizztips and agree that you will not use Confidential Information other than as necessary for you to make use of the Whizztips Platform as expressly permitted by this Agreement and only during the term of this Agreement.
20. Worker Classification and Withholdings
Each Whizz assumes all liability for proper classification of themselves or of such Whizz’s workers as independent contractors or employees based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, or control a Whizz’s work or services performed in any manner. Company does not set a Whizz’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a any particular service.
Neither Whizztips nor the Whizztips Platform are an employment service and Company does not serve as an employer of any Whizz. As such, Company will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of Whizz’s services.
You agree to indemnify, hold harmless and defend Company from any and all claims that a Whizz was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Whizz was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Company was an employer or joint employer of a Whizz, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
21. Background Checks
If you register with Whizztips as a Whizz you hereby authorize WhizzTips to engage a third party consumer reporting agency to use your personal information to run a background and/or criminal background check on you for the legitimate business purpose of protecting the safety and integrity of our Whizztips Platform and our Users (“Background Checks”). Background Checks may be performed as often as required by Whizztips in compliance with federal and state laws and the Fair Credit Reporting Act (the “FCRA”).
To the extent that these Background Checks may be regulated by the the FCRA, and the background reports resulting from these checks are considered “consumer reports” under the FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers’ compensation, driving, employment, military, civil, and educational data and reports.
You understand and agree that WhizzTips may review the information provided by the third party consumer reporting agency and that WhizzTips retains the right to terminate your WhizzTips account based on the information we receive from these checks, even if such information is subsequently dismissed. If WhizzTips terminates your account or access to the Whizztips Platform on the basis of information in a background report, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report unless the consumer reporting agency has already provided you with a copy or access to it. You hereby represent, understand and expressly agree that WhizzTips does not have control over or assume any responsibility for the quality, accuracy or reliability of the information included in these checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it (and not WhizzTips) within the time period specified in your notice.
The results of any Background Check you order that results in WhizzTips suspending or terminating your account will not be shared with other Users, absent a court-order compelling such disclosure or where otherwise required by law. If you authorize a Background Check through WhizzTips, we may indicate in your profile that you have completed that check. However, we will not share the results with any other User without your specific consent.
21.1 Release of Liability for Results of Background Checks
If you decide to use or access information included in a Background Check, you hereby represent, understand and expressly agree that those checks are not always accurate or complete (or based on information that is accurate or complete) and that the specific records searched, and the comprehensiveness of the search, varies by the type of Background Check ordered as well as the state, county or country where the check is performed. For example, many U.S. jurisdictions only include felony conviction records (and not, for example, misdemeanor or arrest records) in the U.S. national criminal data base, which may be the only data source utilized for preliminary U.S. background checks other than the sexual offender registry. Moreover, some U.S. states include only registered sex offenders in that database.
You expressly acknowledge that WhizzTips has no obligation to perform Background Checks on any Whizzes. To the extent WhizzTips performs such checks on certain Whizzes, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those Users have provided or of their eligibility to use the Whizztips Platform.
WHIZZTIPS DOES NOT ASSUME AND EXPRESSLY DISCLAIMS, AND YOU HEREBY AGREE TO RELEASE WHIZZTIPS FROM, ANY LOSS, LIABILITY, DAMAGE, OR COSTS THAT MAY RESULT FROM THE USE OF OR RELIANCE UPON INFORMATION PROVIDED IN A BACKGROUND REPORT INCLUDING, WITHOUT LIMITATION, THE INACCURACY OR INCOMPLETENESS OF ANY SUCH INFORMATION, AS WELL AS YOUR RELIANCE ON COMPLETION OF A BACKGROUND CHECK.
You agree to indemnify, defend and hold harmless WhizzTips, and our partners, independent contractors, service providers and consultants, and our respective directors, officers, employees and agents (individually and collectively, the “WhizzTips Parties”), from and against all claims, damages, awards, judgments, losses, costs, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) arising out of or relating to (a) your use of the Whizztips Platform, (b) any professional services you may provide to another User, (c) any User Content you create, post, share, upload to, transmit, distribute, store or otherwise publish on or through the Whizztips Platform, (d) any Feedback you provide, (e) your violation of these Terms, (f) your submission of a claim of intellectual property infringement as set forth in Section 6 above, and (g) your violation of the rights of another.
USE OF THE WHIZZTIPS PLATFORM IS ENTIRELY AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WHIZZTIPS PLATFORM AND THE WHIZZTIPS CONTENT CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WHIZZTIPS 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 WHIZZTIPS PLATFORM AND WHIZZTIPS CONTENT CONTAINED THEREIN. WHIZZTIPS DOES NOT REPRESENT NOR WARRANT THAT WHIZZTIPS CONTENT ON THE WHIZZTIPS PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE WHIZZTIPS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE WHIZZTIPS PLATFORM AND WHIZZTIPS CONTENT SAFE, WHIZZTIPS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE WHIZZTIPS PLATFORM OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
WHIZZTIPS MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY WHIZZES, AND WHIZZTIPS SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY WHIZZ IN CONNECTION WITH SUCH SERVICES. NOR DOES WHIZZTIPS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WHIZZTIPS PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, OR ANY PRODUCTS, MERCHANDISE, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE WHIZZTIPS PLATFORM OR THIS AGREEMENT.
SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
All third party hardware and other products included or sold with a Whizz’s services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. WHIZZTIPS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL WHIZZTIPS BE LIABLE FOR ANY ACTUAL, DIRECT, INDIRECT, `INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
RELEASE. WHIZZTIPS AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE WHIZZTIPS PLATFORM. THE WHIZZTIPS PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE WHIZZTIPS PLATFORM CONNECTS A USER TO A THIRD PARTY PROVIDER OR WHIZZ FOR THE PURPOSES OF PROVIDING MERCHANDISE HEREUNDER, WHIZZTIPS WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS OR WHIZZES AND YOU EXPRESSLY WAIVE AND RELEASE WHIZZTIPS FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER OR WHIZZ. BECAUSE WHIZZTIPS IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE WHIZZTIPS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS EVEN TO THE EXTENT YOU DO NOT KNOW OR SUSPECT TO EXIST ANY SUCH RIGHTS OR BENEFITS IN YOUR FAVOR AT THE TIME OF THIS AGREEMENT, WHICH, IF KNOWN BY YOU, MUST HAVE MATERIALLY AFFECTED YOUR ACCEPTANCE OF THHIS AGREEMENT
ADDITIONAL DISCLAIMER. THE QUALITY OF THE PROFESSIONAL SERVICES AND/OR THE MERCHANDISE SCHEDULED OR REQUESTED THROUGH THE USE OF THE WHIZZTIPS PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO ULTIMATELY PROVIDES SUCH PROFESSIONAL SERVICES TO YOU AND/OR THE THIRD PARTY MERCHANDISE PROVIDER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE WHIZZTIPS PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES AND/OR MERCHANDISE THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE WHIZZTIPS PLATFORM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE WHIZZTIPS PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
24. Assumption of Risk; Limitation of Liability
You assume all risk when using the Whizztips Platform, including but not limited to all of the risks associated with any online or offline interactions with Requesters and Whizzes.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHIZZTIPS OR THE WHIZZTIPS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WHIZZTIPS PLATFORM OR THE WHIZZTIPS CONTENT, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED through the Whizztips Platform OR FROM the conduct of you or anyone else in connection with the Whizztips Platform (including but not limited to bodily injury, DEATH OR PROPERTY DAMAGE), whether online or offline), 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 WHIZZTIPS’S RECORDS, PROGRAMS OR WHIZZTIPS PLATFORM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF WHIZZTIPS OR THE WHIZZTIPS PARTIES, 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 THE WHIZZTIPS PLATFORM OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO WHIZZTIPS FOR ACCESS TO OR USE OF THE WHIZZTIPS PLATFORM.
BY USING THE WHIZZTIPS PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE WHIZZTIPS PLATFORM. YOU ACCEPT THAT, AS A CORPORATION, WHIZZTIPS HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST WHIZZTIPS'S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE WHIZZTIPS'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS WHIZZTIPS.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME LIMITATIONS OF LIABLILITY IN THIS AGREEMENT MAY NOT APPLY TO YOU.
25. Modification to the Whizztips Platform
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Whizztips Platform (or any features or parts thereof) without prior notice. You agree that WhizzTips will not be liable for any modification, suspension or discontinuance of the Whizztips Platform or any party thereof.
26. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH WHIZZTIPS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
26.1 Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party (i) seeks to bring an individual action in small claims court, or (ii) seeks injunctive or other equitable relief on an individual basis in federal or state court in New York County, New York, with respect to the threatened or alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, or (iii) any claim that an applicable federal statute expressly states cannot be arbitrated, you and WhizzTips agree (a) to waive your and WhizzTips’ respective rights to have Disputes arising from or related to these Terms, the Whizztips Platform or the WhizzTips Content, resolved in a court, and (b) to waive your and WhizzTips’s respective rights to a jury trial. Instead, you and WhizzTips agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
26.2 No Class Arbitrations, Class Actions or Representative Actions
You and WhizzTips agree that any Dispute arising out of or related to these Terms or the Whizztips Platform or WhizzTips Content is personal to you and WhizzTips, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and WhizzTips agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and WhizzTips agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
26.3 Federal Arbitration Act
You and WhizzTips agree that these Terms affect interstate commerce and that the enforceability of this Section 21 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
26.4 Notice; Informal Dispute Resolution
You and WhizzTips agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to WhizzTips shall be sent by certified mail or courier to CloudKnots, LLC, 19 West 34th St., Suite 1018, New York, NY 10001. Your notice must include (a) your name, postal address, telephone number, the email address associated with your WhizzTips account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically to the email address associated with your WhizzTips account and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and WhizzTips/CloudKnots cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or WhizzTips may, as appropriate and in accordance with this Section 21, commence an arbitration proceeding or, to the extent specifically provided for in Section 21.1, file a claim in court.
Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and WhizzTips agree that any Dispute must be commenced or filed by you or WhizzTips within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and WhizzTips will no longer have the right to assert such claim regarding the Dispute). You and WhizzTips agree that (a) any arbitration will occur in New York County in the State of New York or telephonically, (b) The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the class action waiver set forth herein, and (c) that the state or federal courts located in New York County, New York, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county where you reside if the Dispute meets the requirements to be heard in small claims court.
26.6 Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision of this Section 26 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 26 will remain valid and enforceable. Further, the waivers set forth in Section 26.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
27. Governing Law and Venue
These Terms and your access to and use of the Whizztips Platform shall be governed by, construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles. You agree that all disputes, causes of action, claims or controversies that are not subject to binding arbitration will be resolved exclusively in the state or federal courts of New York County, New York, and you hereby irrevocably and unconditionally consent and submit to the exclusive personal jurisdiction of such courts over any suit, action or proceeding arising in connection with these Terms or your access to or use of the Whizztips Platform.
28. Termination; Suspensions
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate or suspend your right to access or use the Whizztips Platform, or any portion thereof, and to block or prevent your future access to and use of the Whizztips Platform or any portion thereof for any or no reason. If Whizztips terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Whizztips reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Whizztips Platform is terminated or suspended, this Agreement will remain enforceable against you.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
30. Dispute Workflow
User should get notified that, if he completes transaction, he may not be able to Dispute the deal. He should ideally wait for the stipulated 5 days for verifying the fix done by Whizz. After the cutoff the transaction gets auto approved as complete and without disputes. The system should also be reminding him of action for these incomplete transactions. The idea is during this time he should be able to request for other services. The details need to be be listed in the terms and conditions.