Terms of Service
Updated November 3, 2022
The following terms and conditions (“Terms”) govern all use by you or the entity that you represent (“you” or “Customer”) of the whimsical.com website and all content, services, and products available at or through the website (taken together, our “Services”). Our Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Whimsical’s Privacy Notice, Whimsical’s Acceptable Use Policy, and Whimsical’s Data Processing Addendum) and procedures that may be published from time to time by Whimsical (collectively, the “Agreement”). Your agreement is with Whimsical, Inc. (“Whimsical”, “we”, or “our”).
As used herein, “User” means you and your Authorized Users. “Authorized User” means your employee, consultant, contractor, or other party making use of or accessing the Services through your account and may include both Editors and Viewers. “Viewers” are unpaid Authorized Users and “Editors” are paid Users of the Services.
Please read this Agreement carefully before accessing or using our Services. By accessing or using any part of our Services, you agree to become bound by the Agreement; if you do not agree to be bound by the Agreement, you may not access or use any of our Services. If these Terms are considered an offer by Whimsical, acceptance is expressly limited to these Terms.
Our Services are not directed to children. Access to and use of our Services is only for those over the age of 16. If you are younger than this, you may not register for or use our Services. Any person who registers as a User or provides their personal information to our Services represents that they are 16 years of age or older. If you are under 16, do not use or provide any information through the Services. If we learn we have collected or received personal information from a child under 16 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 16, please contact us at email@example.com. If you represent an entity, you are responsible for not authorizing any Users under the age of 16.
Use of our Services requires a Whimsical.com account. You agree to provide us with complete and accurate information when you register for an account. You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your password secure.
If you subscribe to our Services on behalf of an entity, your use of the Services is authorized solely for the entity and its Authorized Users and only for your internal business and not for resale, distribution or use by any third party. By entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such Entity to the terms of this Agreement. Only the number of Authorized Users for which the requisite service capacity is purchased may access or use the Services.
1. Your Whimsical Account
To use our Services, you’ll need to create an account, either via Whimsical or through a third-party service such as Google. In the latter case, personal information you provided to that third party (such as your name, email address and other information) will be provided to Whimsical through the third party service in accordance with your privacy settings on that third party service. We will use the personal information provided by the third party service to create your Whimsical account.
In some cases, an account may be assigned to you by an administrator, such as your employer. If you are using or logging into an account assigned by your administrator, such administrators (i) may be able to disable your account without our involvement, and (ii) are the only party permitted to install Third Party Applications (defined below). Furthermore, if you create an account or access our Services and the domain of the email address associated with your account is owned by an organization, we may disclose your email address to such organization in accordance with our Privacy Notice.
You are responsible for maintaining the security of your account, and you are fully responsible for all activities that occur under the account, whether or not you authorized that activity and whether such activities are caused by your Users or an third party that you permit to access or use the Services. You must immediately notify Whimsical of any unauthorized uses of your account, or any other breaches of security. Whimsical will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. You agree that all information you provide to register for our Services or otherwise, including, but not limited to, through the use of any interactive features on our website, is governed by our Privacy Notice, and you consent to all actions we take with respect to your information consistent with our Privacy Notice.
Our Services contain customizable settings that allow Users to give permission to other Users to perform various tasks within the Services (“Permissions”). It is Customer’s sole responsibility to set and manage all Permissions, including which Users can set such Permissions. Accordingly, Whimsical will have no responsibility for managing Permissions and no liability for the Permissions set by Customer and its Users. Customer represents and warrants that it is fully responsible for any breach of this Agreement by its Users and fully responsible for all payment obligations under this Agreement incurred by its Users.
2. Customer Content
By using our Services, you provide us with text, images, and other information (“Customer Content”). You retain full ownership of Customer Content - what belongs to you stays yours. We consider all Customer Content to be confidential and we do not use, share, or access Customer Content unless directed to do so by you. For example, with your permission we would access your Customer Content in order to respond to and solve your support request. However, if you post your Customer Content publicly, such Customer Content becomes non-confidential and non-proprietary (“Public Customer Content”).
You can remove Customer Content by deleting it. However, in certain instances, some of Customer Content may not be completely removed (for example, when your data is shared with someone else). We are not responsible or liable for the removal or deletion of any of Customer Content, or the failure to remove or delete such Customer Content.
You are solely responsible for Customer Content and indicate that you own or have the necessary rights to all of Customer Content, and that use of Customer Content does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, and that the Customer Content complies with these Terms.
Customer Content must comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Customer Content must not, and will not permit any of its Users (including its employees, contractors, affiliates, agents, or personnel) to:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms and our Privacy Notice.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case.
3. Responsibility of Visitors
Whimsical has not reviewed, and cannot review, all of the material, including computer software, posted to our Services, and cannot therefore be responsible for that material’s content, use or effects. By operating our Services, Whimsical does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful, or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Our Services may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. Our Services may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Whimsical disclaims any responsibility for any harm resulting from the use by visitors of our Services, or from any downloading by those visitors of content there posted.
4. Prohibited Uses
You may use the Services only for lawful purposes and in accordance with these Terms. You agree not to use the Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate Whimsical, a Whimsical employee, another User, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of our Services, or which, as determined by us, may harm Whimsical or Users of our Services, or expose them to liability.
Additionally, you agree not to:
- Use our Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of our Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on our website, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of our Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of our Services or any server, computer, or database connected to our Services.
- Otherwise attempt to interfere with the proper working of the Services.
5. Monitoring, Enforcement, and Termination
We reserve the right to:
- Take any action with respect to any Public Customer Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Public Customer Content violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users of our Services or the public, or could create liability for Whimsical.
- Disclose your identity or other information about you to any third party who claims that your Public Customer Content violates their rights.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to cooperate fully 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 Services. YOU WAIVE AND HOLD HARMLESS WHIMSICAL AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We cannot undertake to review Public Customer Content, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
6. Fees, Payment, and Renewal
- Fees: Our Services are free with optional paid upgrades (“Paid Services”). By using a Paid Service, you agree to pay the specified fees, which we’ll bill or charge you for in regular intervals (such as monthly or annually), on a pre-pay basis until you cancel, which you can do at any time via the workspace subscription settings (https://whimsical.com/workspace/subscription). All fees are exclusive of, and Customer shall pay, all sales, use, excise and other taxes, including VAT, and applicable export and import fees, customs duties and similar charges that may be levied upon you in connection with your use of Paid Services, except for employment taxes and taxes based on Whimsical’s net income. If Whimsical reasonably determines that it is required to collect tax from you in connection with your use of Paid Services, then Whimsical may include the amount of such tax in the charges for which you are billed, and you shall pay such taxes.
- Payment: If your payment fails or Paid Services are otherwise not paid for on time, we may immediately cancel or revoke your access to the Paid Services. If you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services, we may revoke your access to our Services in general.
- Automatic Renewal: To ensure uninterrupted service, our Paid Services are automatically renewed. This means that unless you cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment mechanism we have on record for you to collect the then-applicable subscription fee (as well as any taxes). Your Paid Services are renewed for the same interval of time. For example, if you purchase a Whimsical.com annual plan, you will be charged each year.
- Refunds: While you may cancel a Paid Service at any time, refunds are issued in our sole discretion.
- Fee Changes: We may change our fees at any time. When applicable, we may give you advance notice of the fee changes. If you do not agree with the fee changes, you may cancel your Paid Service.
7. Content Posted on Other Websites
We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which Whimsical.com links, and that link to Whimsical.com. Whimsical does not have any control over those non-Whimsical.com websites, and is not responsible for their contents or their use. By linking to a non-Whimsical.com website, Whimsical does not represent or imply that it endorses such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Whimsical disclaims any responsibility for any harm resulting from your use of non-Whimsical.com websites and webpages.
8. Copyright Infringement and DMCA Policy
As Whimsical asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Whimsical.com violates your copyright, you are encouraged to notify Whimsical (firstname.lastname@example.org) in accordance with Digital Millennium Copyright Act of 1998. Whimsical will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Whimsical will terminate a visitor’s access to and use of the Services if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Whimsical or others. In the case of such termination, Whimsical will have no obligation to provide a refund of any amounts previously paid to Whimsical.
9. Intellectual Property
This Agreement does not transfer from Whimsical to you any Whimsical or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with Whimsical. Whimsical, Whimsical.com, the Whimsical.com logo, and all other trademarks, service marks, graphics and logos used in connection with Whimsical.com or our Services, are trademarks or registered trademarks of Whimsical or Whimsical’s licensors. Other trademarks, service marks, graphics and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any Whimsical or third-party trademarks.
10. Third Party Services
We may offer to you the ability to access, or the Services may be integrated or interact with, third party applications, links, websites, and services (“Third Party Applications”) to make the Services available to you. These Third Party Applications may have their own terms and conditions of use and privacy policies. Your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications, nor does Whimsical warrant the compatibility or continuing compatibility of the Third Party Applications with the Services.
We are constantly updating our Services, and that means sometimes we have to change the legal terms under which our Services are offered. If we make changes that are material, we will let you know by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.
Whimsical may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Whimsical.com account (if you have one), you may simply discontinue using our Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Disclaimer of Warranties
Our Services are provided “as is”. Whimsical and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Whimsical nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, our Services at your own discretion and risk.
14. Jurisdiction and Applicable Law
Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of our Services will be governed by the laws of the state of Delaware, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Denver County, Colorado.
15. Arbitration Agreement
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
16. Limitation of Liability
In no event will Whimsical, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Whimsical under this Agreement during the twelve (12) month period prior to the cause of action. Whimsical shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
17. General Representation and Warranty
You represent and warrant that your use of our Services:
- Will be in strict accordance with this Agreement;
- Will comply with all applicable laws and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection); and
- Will not infringe or misappropriate the intellectual property rights of any third party.
18. US Economic Sanctions
You expressly represent and warrant that your use of our Services and or associated services and products is not contrary to applicable U.S. Sanctions. Such use is prohibited, and Whimsical reserves the right to terminate accounts or access of those in the event of a breach of this condition.
You agree to indemnify and hold harmless Whimsical, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of our Services, including but not limited to your violation of this Agreement.
This Agreement constitutes the entire agreement between Whimsical and you concerning the subject matter hereof. We may modify any part of this Agreement by posting a revised version at https://whimsical.com/terms. The revised version will become effective and binding the next business day after it is posted. If you do not agree with a modification to the Agreement, you should cease use of the Services immediately.
If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Whimsical may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
21. Your Comments and Concerns
The Services are operated by Whimsical, Inc., 1630 Welton Street, 7th Floor, Denver, Colorado 80202, USA.All notices of copyright infringement claims should be sent to email@example.com.All other feedback, comments, requests for technical support, and other communications relating to our website, the Services, and these Terms should be directed to firstname.lastname@example.org.