Terms & Conditions
Terms and Conditions
Welcome to Whammycackle.com operated by Whammycackle.com, (“Whammycackle.com,” the “Company” or “We”). Your access to, browsing of or use of this website and any mobile sites and applications (collectively, the “Site”) is subject to the following terms and conditions (the “Terms and Conditions”). Please read the Terms and Conditions carefully. By accessing, browsing or using the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”), you accept and acknowledge your assent to, without limitation or qualification, the Terms and Conditions. If you do not agree to the Terms and Conditions, then please do not access, browse or use the Site or any Services.
We may change, add or remove portions of these Terms and Conditions at any time, which shall become effective immediately upon posting. It is your responsibility to review these Terms and Conditions prior to each use of the Site and by continuing to use this Site, you agree to any changes. YOUR CONTINUED USE OF THE SITE OR THE SERVICES NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THESE TERMS AND CONDITIONS, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES, OR MODIFICATIONS.
Except for User Content (as defined below), the content on this Site, including, without limitation, the text, designs, graphics, the selection and arrangement thereof, source code, API, software, scripts, graphics, photos, sounds, music, videos, and interactive features (collectively, the “Whammycackle content”) are owned or licensed by the Company, its licensors or other providers of such material and are protected by United States copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Without the prior written consent of the Company, you may not use the Whammycackle content other than in accordance with the Terms and Conditions. Furthermore, the redistribution, retransmission, republication, sale or commercial exploitation of the Whammycackle content is expressly prohibited without the prior written consent of the Company. You may view and download one copy of the Whammycackle content to your computer or mobile device for your own personal, non-commercial use only, so long as you do not delete or change any copyright, trademark or other proprietary notices.
No right, title or interest in or to the Site or the Whammycackle content is transferred to you. The Company neither represents nor warrants that your use of the Whammycackle content will not infringe upon the rights of third parties not owned by or affiliated with the Company.
The trademarks, logos and service marks (collectively, the “Trademarks”) displayed on the Site are registered and unregistered Trademarks of the Company and others. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Site without the prior written consent of the Company or such third party that may own the Trademarks displayed on the Site. The Trademarks displayed on the Site may not be used other than in accordance with the Terms and Conditions. You are also advised that the Company will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
USE OF THE SITE
As a condition of you accessing, browsing and/or using the Site and the Services, you represent and warrant that: you possess the capacity and legal authority to create a binding legal obligation; you will use the Site and the Services in accordance with these Terms and Conditions; and we retain the right in our sole discretion to deny access to anyone to the Site and/or the Services, at any time or from time to time, and for any reason or for no reason, including, but not limited to, for violation of these Terms and Conditions or the documents referenced herein.
You agree to use the Site and the Services only for lawful purposes. You are responsible for all of your activity in connection with the Site and the Services. You shall not (and shall not permit any other party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Site, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any contractual duty;
- is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- is unlawful or otherwise encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, federal, or international law;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone’s identification documents or sensitive financial information.
In addition, you agree not to:
- send or otherwise post unauthorized commercial communications (such as spam) through the Site or the Services or otherwise use the Site or the Services or the Whammycackle content for any commercial purpose;
- access, monitor or copy any Whammycackle content using any robot, spider, scraper or other automated means or any manual process for any purpose without the prior written consent of the Company;
- violate the restrictions in any robot exclusion headers on the Site or bypass or circumvent other measures employed to prevent or limit access to the Site or the Services;
- introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Company’s infrastructure;
- attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site or the Services, the server on which the Site is stored, or any server, computer or database connected to the Site or the Services;
- deep-link to any portion of the Site for any purpose without the prior written consent of the Company;
- “frame,” “mirror” or otherwise incorporate any part of the Site into any other website without the prior written consent of the Company; or
- attack the Site using a denial-of-service attack or a distributed denial-of-service attack or use any device, software, or routine that interferes with the proper working of the Site or the Services.
If we are notified of or suspect allegedly infringing, defamatory, damaging, illegal, or offensive content provided by you (e.g., through an author chat, online review, or participation in our Community tab), we may (but without any obligation) investigate the allegation and determine in our sole discretion whether to remove or request the removal of such content from the Site.
Some of the features of this Site, including, but not limited to, message boards, chat rooms, personal web pages or profiles, forums or bulletin boards may allow users to view, display, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content, including, but not limited to, photos and videos (together with User Submissions, “User Content”). User Content includes all content submitted through your account. By posting or publishing User Content to this Site, you represent and warrant that (i) you have all necessary rights to distribute User Content via this Site, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Site, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.
You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Site or the Services.
OFF-SITE LINKS; SOCIAL MEDIA; PAYMENT PROCESSING
The third party sites hyperlinked to or from the Site are not under the control of the Company (for example, links to Facebook, Twitter, and Pinterest). You may also need to use a third party’s product or service in order to use some of our Services (like a compatible mobile device to use our mobile apps). We have not reviewed any or all of the third party sites hyperlinked to or from the Site and we do not make any endorsements or representations regarding any third party site. We are not responsible for the content or accuracy of any third party sites hyperlinked to or from the Site. The products and services which can be accessed, purchased or obtained through such third party sites are from persons or entities other than the Company. The Company does not make any representations or warranties of any kind, including, without limitation, warranty of merchantability or warranty of fitness for a particular purpose, with regard to such services and products. When you access these third-party sites, products and services, you do so at your own risk.
We may also provide a hyperlink to a third-party payment processor for you to pay for Services offered through the Site. The processing of payments will be subject to the terms, conditions and privacy policies of the payment processor in addition to these Terms and Conditions. We are not responsible for errors by the payment processor.
RELIANCE ON INFORMATION POSTED
The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
As indicated above, the Site includes content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
The Services may not be available in all geographic areas. Not all persons or entities are eligible for all of the Services. We reserve the right to determine, in our sole discretion, the eligibility for any such Service. Additionally, we reserve the right to cease offering or providing or suspend any Services at any time, for any or no reason, and without prior notice. The Company will not be liable to you or any third party for any modification, suspension, or discontinuance of any Service we may offer or facilitate access to.
PRIVACY AND SECURITY
If you choose or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it or the Services using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms and Conditions.
MONITORING AND ENFORCEMENT; TERMINATION
We have the right to:
- Remove or refuse to post any User Content for any or no reason in our sole discretion;
- Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates these Terms and Conditions, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site, the Services or the public or could create liability for the Company;
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
- Take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site and/or the Services.
- Terminate or suspend your access to all or part of the Site for any or no reason, including, without limitation, any violation of these Terms and Conditions or to assist with our fraud and abuse detection and prevention efforts.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site and/or the Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND CONDITIONS OR YOUR USE OF THIS SITE OR THE SERVICES.
DISCLAIMER OF LIABILITY
IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Please note that some jurisdictions may not allow the exclusion of liability for incidental or consequential damages, so some of the above exclusions may not apply to you.
You agree to defend, indemnify and hold harmless the Company and its directors, officers, employees, agents, representatives and affiliates and any other third party involved in creating, producing or delivering the Site, the Services or the Whammycackle content from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by the Company directly or indirectly arising from (i) your use of and access to this Site or the Services; (ii) your violation of any provision of these Terms and Conditions or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of these Terms and Conditions or your use of this Site or the Services.
CLAIMS OF COPYRIGHT INFRINGEMENT
The Digital Millennium Copyright Act of 1998 (as amended, the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by the Site infringe your copyright, you (or your agent) may send the Company a notice requesting that the material be removed, or access to it be blocked. Such notice must include: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on the Site; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Notices and counter-notices with respect to the Site should be sent to Whammycackle.com, Inc. 1855 Griffin Road, Suite A-330, Dania Beach, FL 33004, Attn: Legal. The Company suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
The Company does not authorize the downloading or exportation of the Whammycackle content or any software or technical data from the Site to any jurisdiction which prohibits the downloading or exportation of such content or data or to any jurisdiction prohibited by United States export control laws.
In the event that any one or more of the provisions contained in the Terms and Conditions shall be declared invalid, void or unenforceable, the remaining provisions of the Terms and Conditions shall remain in full force and effect, and such invalid, void or unenforceable provision shall be interpreted as closely as possible to the manner in which it was written.