End User Terms
Last Updated: April 19, 2022
Welcome to the Whoosh Platform (as defined below). Please read these End User Terms (these “User Terms”) and our Privacy Policy (whoosh.io/privacy) (as may be updated from time-to-time, the “Privacy Policy”) carefully because they govern your use of our software-as-a-service for activity reservation and management platform (including any associated desktop and mobile device applications (“Apps”) and websites) and related services (collectively with any improvements, modifications, features and derivative works thereof, the “Whoosh Platform”). To make these User Terms easier to read, the terms “Whoosh,” “we,” “our” and “us” include Whoosh, Inc. and our affiliates and subsidiaries.
By using the Whoosh Platform, you agree to be bound by these User Terms. If you do not agree to be bound by these User Terms, do not use the Whoosh Platform.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE USER TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND WHOOSH THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
1. Whoosh Platform.
The Whoosh Platform allows you to make reservations at golf facilities, as permitted by the Course Provider (defined below) and view information about the applicable golf course. The Whoosh Platform may also allow you to invite others to join your reservation, view the details of other members’ reservations at the same golf course, and/or perform other activities.
2. User Terms.
You have been invited to use and access the Whoosh Platform by an organization or other third party (e.g., golf course or country club), which has entered into a separate written agreement with Whoosh to make the Whoosh Platform available to end users for golf course and/or country club reservations and other activities (such third party, the “Course Provider”). You acknowledge that your rights to use the Whoosh Platform are subject to the Course Provider’s rights and obligations under the Course Provider’s agreement with Whoosh to control and manage certain aspects of the Whoosh Platform. For example, Course Provider may suspend or terminate your account and/or access to the Whoosh Platform, or grant, restrict or modify your ability to access certain data or content within the Whoosh Platform (including data or content that you upload to or post on the Whoosh Platform). You further acknowledge that your access and use of the Whoosh Platform will automatically terminate upon the expiration or termination of our separate written agreement with the Course Provider.
3. Privacy Policy.
Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Whoosh Platform is subject to our Privacy Policy.
4. Changes to Terms or Platform.
We may update these User Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated User Terms either on our website, within the Whoosh Platform or through other communications. It’s important that you review these User Terms whenever we update them or you use the Whoosh Platform. If you continue to use the Whoosh Platform after we have posted updated User Terms, you are agreeing to be bound by the updated User Terms. If you don’t agree to be bound by the updated User Terms, then you may not use the Whoosh Platform anymore. Because the Whoosh Platform is evolving over time, we may change or discontinue all or any aspect of the Whoosh Platform, at any time and without notice, at our sole discretion.
5. Who May Use the Whoosh Platform?
(a) Eligibility. You may use the Whoosh Platform only if you are (i) 13 years or older and capable of forming a binding contract with Whoosh; (ii) not barred from using the Whoosh Platform under applicable law; and (iii) authorized to do so by Course Provider. If you are not legally considered an adult in your jurisdiction, you must ask one of your parents (or legal guardians) to read these User Terms and accept them on your behalf. Parents and guardians are responsible for the acts of their minor children when using the Whoosh Platform, whether or not the parent or guardian authorized such uses.
(b) Registration and Your Information. In order to us the Whoosh Platform, you are required to create an account or similar profile to use the Whoosh Platform (“Account”). You can do this via the Whoosh Platform through our online registration procedures which we may update from time to time. We may also allow you to create an Account through your account with certain third-party services such as Facebook, Apple, Google, Twitter, Jonas Software, or Club Essential (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. You agree that you won’t misrepresent your identity, use any other person’s image, likeness or identity, or otherwise provide any deceptive or misleading profile information or images in connection with the creation and use of your Account.
(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account, and you agree to update such information to keep it accurate, complete and up to date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and will use all reasonable means to secure your Account password and associated login credentials. You agree to notify us immediately of any unauthorized use of your Account, and you agree not to share your Account with any other person or otherwise permit any other person to use your Account, even on a temporary basis. You’re responsible for all activities that occur under your Account, whether or not you know about them. We may take actions we deem reasonably necessary to prevent fraud and abuse, including placing restrictions on user accounts or on the amount of content that can be accessed from the Whoosh Platform at any one time.
6. Feedback.
We welcome feedback, comments and suggestions for improvements to the Whoosh Platform (“Feedback”). You can submit Feedback by emailing us at support@whoosh.io. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
7. Content Ownership and Responsibility.
(a) Definition. For purposes of these User Terms: “Content” means any information, data, content and other materials, including without limitation text, graphics, images, software, video, avatars, characters, and other works of authorship of any kind, in each case that are posted, generated, provided or otherwise made available through the Whoosh Platform, including, but not limited to User Content. “User Content” means the data (including personal data and personally identifiable information), content, images, materials, and communications that you upload to or post on the Whoosh Platform in connection with the operation and use of the Whoosh Platform.
(b) Course Provider Rights and Responsibilities. You acknowledge that as between us and the Course Provider, it is the Course Provider’s sole responsibility to (i) inform you of any Course Provider policies or actions that may affect User Content and your ability to access User Content or any other aspects or areas of the Whoosh Platform; and (ii) respond to and resolve your questions and problems, and handle any disputes, in connection with User Content or your use of the Whoosh Platform.
(c) Our Content Ownership. Whoosh does not claim any ownership rights in any User Content, and as between you and Whoosh, nothing in these User Terms will be deemed to restrict any rights that you may have to use and exploit User Content other than any rights and restrictions afforded to Course Provider under the Course Provider Agreement. Subject to the foregoing, Whoosh and its licensors hereby exclusively own and reserve all right, title and interest in and to the Whoosh Platform and Content, including all associated intellectual property rights. You acknowledge that the Whoosh Platform and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Whoosh Platform or Content.
(d) Rights in Data and Other User Content Granted by You.
By making User Content available through the Whoosh Platform you hereby grant to Whoosh and its parents, subsidiaries, affiliates, licensee, successors, and assigns a non-exclusive, transferable, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense through multiple tiers, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform User Content in whole or in part in connection with operating, providing and improving the Whoosh Platform and Content.
User Content includes, among other items, data and information that you provide to us. You acknowledge and agree that Whoosh may derive, compile, generate, process and analyze data (including aggregate or anonymized data or information and any insights derived therefrom) and other information relating to the provision, use and performance of various aspects of the Whoosh Platform (collectively, “Aggregate Data”). Whoosh owns all right, title and interest in and to the Aggregate Data and may use such Aggregate Data for any lawful purpose in connection with its business, including to provide certain features within the Whoosh Platform (such as analytics) and improve or otherwise optimize the Whoosh Platform.
(e) Your Responsibility for User Content. You are solely responsible for all User Content. You represent and warrant that neither User Content, nor your use and provision of User Content to be made available through the Whoosh Platform, nor any use of User Content by Whoosh on or through the Whoosh Platform will 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. You represent and warrant that all of your User Content and your activities in connection with the Whoosh Platform will, at all times, comply with (i) the Terms; (ii) all applicable laws, rules, and regulations; and (iii) any other guidelines or requirements that we may make available to you from time to time.
(f) Removal of User Content. The Whoosh Platform may allow you to remove User Content by specifically deleting it within the Whoosh Platform, subject to any applicable limitations imposed by Course Provider, if applicable. However, in certain instances, some of your User Content (such as any materials you upload or post, including on behalf of Course Provider, or anything that Course Provider wishes to retain, if applicable) may not be completely removed and copies of your User Content may continue to exist on the Whoosh Platform. We are not responsible or liable for the removal or deletion of (or failure to remove or delete) any of your User Content, including any data, information or other materials.
8. Rights and Terms for Apps.
The Whoosh Platform may be offered via an App (defined above). The following terms apply if your use of and/or access to the Whoosh Platform is via an App:
(a) Rights in App Granted by Whoosh. Subject to your compliance with these User Terms, Whoosh grants to you a limited, revocable, non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device, computer or other compatible hardware that you own or control and to run such copy of the App solely for your personal use of the Whoosh Platform and, if applicable, as authorized by the Course Provider. Except as expressly permitted in these User Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party or otherwise use the App on a time sharing or service bureau basis; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Whoosh hereby reserves all rights in and to the App not expressly granted to you under these User Terms.
(b) Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
These User Terms are concluded between you and Whoosh, and not with the App Provider, and Whoosh (not the App Provider), is solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, the App Provider will have no warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Whoosh.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Whoosh will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these User Terms.
The App Provider, and its subsidiaries, are third-party beneficiaries of these User Terms as related to your license to the App, and that, upon your acceptance of these User Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these User Terms as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You must also comply with all applicable third-party terms of service when using the App.
9. General Prohibitions and Whoosh’s Enforcement Rights.
You agree to not do any of the following in connection with your use of the Whoosh Platform:
(a) Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, abuse or harm against any individual or group; (vi) is violent, intimidating or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Access, tamper with, or use non-public areas of the Whoosh Platform, Whoosh’s computer systems, or the technical delivery systems of Whoosh’s providers;
(c) Attempt to probe, scan or test the vulnerability of the Whoosh Platform or any other Whoosh system or network or breach any security or authentication measures;
(d) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Whoosh or any of Whoosh’s providers, Course Provider or any other third party (including another user) to protect the Whoosh Platform or Content;
(e) Attempt to access or search the Whoosh Platform or Content or download Content from the Whoosh Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Whoosh to be expressly used for such purposes;
(f) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(g) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Whoosh Platform or Content;
(h) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Whoosh Platform;
(i) Collect, use, transmit, disclose or store any personally identifiable information from the Whoosh Platform from other users of the Whoosh Platform;
(j) Impersonate or misrepresent your affiliation with any person or entity;
(k) Use any Confidential Information (as defined below), the Whoosh Platform or any of its component features or functionalities to develop, sell, license, commercialize or contribute to the development or commercialization of any product or service that could compete with the Whoosh Platform;
(l) Provide any information that is intended to misinform, misdirect, mislead, or otherwise deceive any users of the Whoosh Platform or any other third party;
(m) Violate any applicable law or regulation; or
(n) Encourage, assist, permit or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Whoosh Platform or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Whoosh Platform, to ensure compliance with these User Terms, the terms of any Course Provider Agreement and/or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these User Terms. We also reserve the right to terminate or suspend your access to the Whoosh Platform, at any time and without prior notice, if we, at our sole discretion, determine that you have violated any of the prohibitions included in these User Terms. We have the right to investigate violations of these User Terms or conduct that affects the Whoosh Platform. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
If you believe that any Content or other items provided via the Whoosh Platform infringe, misappropriate, or violate your intellectual property rights, are abusive, harassing, offensive or hateful, or otherwise violate the prohibitions listed above, please email us at: support@whoosh.io.
10. Third Party Services.
Certain features and functionalities within the Whoosh Platform as we determine in our sole discretion may also allow you and other Account holders to interface or interact with, access and/or use compatible third-party services, products, technology, websites and content (collectively, “Third Party Services”) through the Whoosh Platform. You agree that (i) Whoosh does not provide any aspect of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Whoosh Platform or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto; and (ii) you or Course Provider are solely responsible for maintaining the Third Party Services and obtaining any associated licenses and consents necessary for you to utilize the Third Party Services in connection with the Whoosh Platform.
11. Fees and Payment.
(a) Fees. You agree to pay Whoosh all of the fees agreed upon in connection with your registration and/or use of the Whoosh Platform, if applicable.
(b) Payments. All payments made for the Whoosh Platform to Whoosh will be made in U.S. dollars by credit card and will be non-refundable. You hereby authorize Whoosh, through a third-party credit card processor, to charge your credit card for the applicable fees. The Whoosh Platform will only be made available if the agreed upon fees are paid in full, and access to the Whoosh Platform may be suspended for the time that any such fees are due and not paid. The payments described in this Section are separate from any payments made to the Course Provider outside of the Whoosh Platform, which are governed by separate terms between you and the Course Provider and/or the Course Provider’s third-party payment processor.
(c) Taxes. You will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Whoosh hereunder, other than any taxes imposed on Whoosh’s income. Without limiting the foregoing, in the event you are required to deduct or withhold any taxes from the amounts payable to Whoosh hereunder, you shall pay an additional amount, so that Whoosh receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
12. Term and Termination.
(a) These User Terms apply to you for the duration of your access to the Whoosh Platform as authorized by the Course Provider, until (i) terminated by the Course Provider or us, or (ii) until you cancel your Account or cease use of the Whoosh Platform.
(b) We may terminate your access to and use of the Whoosh Platform, at our sole discretion, at any time and without notice to you.
(c) You may cancel your Account at any time by sending an email to us at support@whoosh.io or, if applicable, via the Whoosh Platform. Upon any termination, discontinuation or cancellation of the Whoosh Platform or your Account, the following Sections will survive: 6 – 10 and 12 – 19.
13. Warranty Disclaimers.
THE WHOOSH PLATFORM AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OR WHETHER OBTAINED FROM WHOOSH, COURSE PROVIDER OR OTHERWISE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE USER TERMS. FURTHER, WHOOSH MAKES NO WARRANTY THAT THE CONTENT, OR THE WHOOSH PLATFORM OR ANY OF ITS COMPONENT FEATURES AND FUNCTIONALITIES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WHOOSH DOES NOT WARRANT OR GUARANTEE: (I) ANY RESULTS FROM THE USE OF THE WHOOSH PLATFORM OR CONTENT; OR (II) THAT THE WHOOSH PLATFORM OR CONTENT WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. WHOOSH HEREBY SPECIFICALLY DISCLAIMS ALL LIABILITY ARISING FROM ALL THIRD-PARTY SERVICES.
YOU ACKNOWLEDGE THAT THE WHOOSH PLATFORM IS USED BY COURSE PROVIDERS TO MANAGE RESERVATIONS AND OTHER ACTIVITIES AND, ACCORDINGLY, WE ARE NOT LIABLE WHATSOEVER, WHETHER SUCH DAMAGES ARE DIRECT OR INDIRECT, WITH RESPECT TO ANY ACTS OR OMISSIONS OF ANY COURSE PROVIDER OR ANY OTHER USER, ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, MATERIALS OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF ANY COURSE PROVIDER, ANY DEATH, BODILY INJURY, PROPERTY DAMAGE, OR HAZARDOUS CONDITIONS CAUSED BY ANY COURSE PROVIDER OR OCCURRING ON COURSE PROVIDER’S PROPERTY, ANY CANCELLATION, POSTPONEMENT OR MODIFICATION OF ANY RESERVATIONS, OR ANY OTHER INTERACTION BETWEEN YOU AND ANY COURSE PROVIDER OR ANY OTHER USER.
14. Indemnity.
You will indemnify and hold harmless Whoosh and its officers, directors, employees, shareholders and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Whoosh Platform or Content, (ii) User Content, or (iii) your violation of these User Terms.
15. Limitation of Liability.
(a) NEITHER WHOOSH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WHOOSH PLATFORM OR CONTENT WILL BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE THE WHOOSH PLATFORM OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WHOOSH OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL WHOOSH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE OR ACCESS THE WHOOSH PLATFORM OR CONTENT EXCEED ONE HUNDRED DOLLARS ($50).
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WHOOSH AND YOU.
16. Governing Law and Forum Choice.
These User Terms and any action or proceeding related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Subject to Section 8(b), and except as otherwise set forth in Section 17 “Dispute Resolution” below, the exclusive jurisdiction for any dispute, claim or controversy arising out of or relating to these User Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Whoosh Platform or Content (collectively, “Disputes”) that you are not required to arbitrate by these User Terms will be the applicable state and federal courts located in or which jurisdiction covers San Francisco, California, and you and Whoosh each waive any objection to jurisdiction and venue in such courts.
17. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that all Disputes will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Whoosh agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these User Terms, and that you and Whoosh are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these User Terms.
(b) Exceptions and Opt-out. As limited exceptions to Section 17(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights may be resolved in court and need not be resolved through arbitration; and (iii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at support@whoosh.io within thirty (30) days following the date you first agree to these User Terms.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these User Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Class Action Waiver. YOU AND WHOOSH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 4 “Changes to Terms or Platform” above, if we change any of the terms of this Section 17 “Dispute Resolution” after the date you first accepted these User Terms (or accepted any subsequent changes to these User Terms), you may reject any such change by sending us written notice (including by email to support@whoosh.io) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email or other communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the terms of this Section 17 “Dispute Resolution” as of the date you first accepted these User Terms (or accepted any subsequent changes to these User Terms).
(g) Severability. With the exception of any of the provisions in Section 17(e) of these User Terms (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these User Terms is invalid or unenforceable, the other parts of these User Terms will still apply.
18. General Terms.
(a) Entire Agreement. These User Terms constitute the entire and exclusive understanding and agreement between Whoosh and you regarding the Whoosh Platform and Content, and these User Terms supersede and replace any and all prior oral or written understandings or agreements between Whoosh and you regarding the Whoosh Platform and Content. If any provision of these User Terms is held invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these User Terms will remain in full force and effect. You may not assign or transfer these User Terms, by operation of law or otherwise, without Whoosh’s prior written consent. Any attempt by you to assign or transfer these User Terms, without such consent, will be null. Whoosh may freely assign or transfer these User Terms without restriction. Subject to the foregoing, these User Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Whoosh under these User Terms, including those regarding modifications to these User Terms, will be given: (i) via email; or (ii) by posting to the Whoosh Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Whoosh’s failure to enforce any right or provision of these User Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Whoosh. Except as expressly set forth in these User Terms, the exercise by either party of any of its remedies under these User Terms will be without prejudice to its other remedies under these User Terms or otherwise.
19. Communications.
You consent to us sending messages to your email or mobile devices about your account or our services. You may be able to opt out of some communications in ways that are specific to that communication method, such as by unsubscribing from emails, or replying to text messages with ‘STOP’.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a Whoosh account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, reminders, notifications regarding updates to your account or account support. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
20. Contact Information.
If you have any questions about these User Terms or the Whoosh Platform, please contact Whoosh at support@whoosh.io.