The whippy.ai website is owned and operated by Hello Flexy Inc. d/b/a Whippy (“Whippy”). Please read these Terms of Service (“Terms” or “Agreement”) carefully before using this website (the “Website” or “Site”) or its mobile applications and any related platform and services offered by Whippy (collectively, the “Service”). This Agreement, together with the Terms of Sale and all applicable Order Form(s) you enter into with Whippy, sets forth the legally binding terms and conditions for your use of the Service as a Customer (“Customer”).

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH WHIPPY. PLEASE READ IT CAREFULLY.

If you have any questions, please refer to the “Contact Us” section.

For information about our data privacy practices, please review our Privacy Policy [

]. By accessing or using the Service, you agree that we can collect and use your information in accordance with the Privacy Policy.

Whippy is a business-to-business service provider that allows its Customers to create and manage sales, marketing and customer success campaigns though text messages. If you are a user that has received a text message sent by Whippy and you wish to opt-out of any future messages, you may opt-out by texting “STOP” [INSERT OTHER STOP KEY WORDS].

Whippy is not a broker, agent, insurer, guarantor, or endorser of any Customer. Whippy makes no representations, warranties or guarantees regarding any content or information provided by a Customer, including the accuracy, truth, or quality thereof. Whippy and its officers, directors, agents, subsidiaries, joint ventures, employees, suppliers, licensors and representatives (collectively, Whippy’s “Affiliates”) are not responsible for any acts or omissions of any Customers on the Service.

YOU RELEASE WHIPPY AND ITS AFFILIATES FROM ANY CLAIMS RELATED TO SERVICES, GOODS, OR ANY OTHER ENGAGEMENT TRANSACTED THROUGH THE SERVICE, INCLUDING FOR NON-PERFORMANCE, DEFECTIVE PRODUCTS OR SERVICES, MISREPRESENTATIONS BY A CUSTOMER, OR PRODUCTS THAT CAUSED PHYSICAL INJURY (LIKE PRODUCT LIABILITY CLAIMS).

If you are signing this Agreement on behalf of an entity, you represent and warrant that: (i) you have full legal authority to bind the entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the entity, to this Agreement. If you do not have the legal authority to bind the entity to this Agreement, please do not sign this Agreement.

Age. Whippy is available only to, and may only be used by, individuals who are 18 years of age and older, and who can form legally binding contracts under applicable law. By registering with the Service, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. We have the sole discretion to refuse access to or use of the Site to any person or entity, and to change the eligibility criteria, in each case, at any time. The foregoing is void where prohibited by law and the right to access Whippy is revoked in such jurisdictions.

Password. Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree not to provide your username and password information in combination to any other party other than Whippy without our express written permission. You must immediately notify Whippy of any unauthorized use of your password or any breach of security.

Account Transfer. The access rights granted to you under this Agreement are non-transferable without our express written permission. You may not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, without our prior written consent. Any attempted assignment or other transfer without such consent is void and deemed to be a breach of this Agreement. All of our rights and obligations under this Agreement are freely assignable by Whippy. The terms “assignment” and “transfer” includes (a) any sale or transfer of all or substantially all of your assets, (b) a merger, consolidation or reorganization, and (c) a change in ownership.

Right to Refuse Service. We reserve the right, in our sole discretion, to cancel unconfirmed or inactive accounts. Further, we reserve the right to refuse service to anyone, for any reason, at any time.

Whippy owns all legal right, title and interest in and to the Service, including any intellectual property rights which are embodied in the Service, whether those rights happen to be registered or not, and wherever those rights may exist. Whippy, and other Whippy’ graphics, logos, designs, page headers, button icons, scripts, and service names are trademarks or trade dress of Whippy in the U.S. and/or other countries. No Customer or user has any right to use any of Whippy’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features, and trade dress, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner.

Whippy hereby grants to Customer a limited nonexclusive, royalty free, irrevocable (except as provided herein), nontransferable, non-assignable right and license to access and use the Whippy Service.

Whippy will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service (including, without limitation, information concerning Customer Data, metadata, and data derived therefrom), and Whippy will be free to (a) use such information and data to improve and enhance the services and other offerings of Whippy, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.

Customer warrants and represents that it is compliance with all applicable state, federal, and international laws, rules, and regulations and that Customer will not use the Services in a manner that would violate or cause Whippy to violate any obligation with respect to any such laws, rules, or regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, and Do Not Call rules and prohibitions.

Customer acknowledges and agrees that the Services are intended to allow Customer to send text messages, only to Customer’s own current clients who have consented to the receipt of such communications and such clients are provided with all notices in accordance with applicable law and regulations.

Customer acknowledges and agrees that Customer is solely responsible for any text messages that are not information or transactional text messages such as advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing Texts”), and that Customer has provided to its users (a) all required disclosures to Customer’s clients and obtain all required consents and/or authorizations from Customer’s clients, based on applicable laws, prior to utilizing the Services; (b) obtained all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by these Terms and to grant Whippy the rights herein; and (c) any Marketing Texts sent through the Service are compliance with all local, state, national, and international laws, regulations and industry-specific best practices.

Customer acknowledges and agrees that Customer is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and Whippy expressly disclaims any liability for Customer’s non-compliance.

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Service or any software, documentation, or data related to the Platform; modify, translate, or create derivative works based on the Service; use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; provide use of the Service on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Service or "frame" or "mirror" any of the Service on any other server, or wireless or Internet-based device; or remove any proprietary notices or labels.

Customers are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”).

Customers are also responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment, with or without Customer’s knowledge or consent. For purposes of clarification, without limitation, Customer is responsible for all use of Service through Customer’s account, even if Customer did not authorize a particular use.

6. Customer Data and Customer Code of Conduct

Customer represents and warrants that it has sole ownership of any data, text, information, usernames, user data (including but not limited to phone numbers or other personally identifying information), graphics, images, photographs, profiles, audio, video, items, and links (collectively, “Customer Data”) it provides to Whippy, or otherwise has legal rights to provide such Customer Data to Whippy, and Customer’s use of such Customer Data on Service will not violate third-party rights, including intellectual property, privacy, and publicity rights.

Customers hereby grant to Whippy a limited license to use any Customer Data for the sole and exclusive purpose of providing the Service. Customer shall retain all right, title, and interest to Customer Data.

In connection with using or accessing our Service, you will not send text messages including any of the following products, content, and services:

Use our Service for the purpose of exploiting, harming, or attempting to exploit or harm any other individuals in anyway by expositing them to inappropriate content, asking for personally identifiable information, or otherwise

Distribute viruses or any other technologies that may harm the interests or property of users

Harvest or otherwise collect information about any users without their consent

Circumvent or attempt to circumvent any technical measures used to provide our Service

To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm other users of the Service

False, inaccurate, misleading, deceptive, defamatory, or libelous content

Weapons; firearms/guns and components; BB/pellet, stun, and spear guns; etc.

Ammunition, clips, cartridges, reloading materials, gunpowder, fireworks, explosives

Offers, solicitation, or facilitation of illegal prostitution and/or sex trafficking

Exploitation or endangerment of minors; child pornography

Prescription drugs, medical devices; controlled substances and related items

Alcohol or tobacco; unpackaged or adulterated food or cosmetics

Endangered, imperiled and/or protected species and any parts thereof, e.g., ivory

False, misleading, deceptive, or fraudulent content; bait and switch; keyword spam

Offensive, obscene, defamatory, threatening, or malicious postings or email

Anyone’s personal, identifying, confidential or proprietary information

Food stamps, WIC vouchers, SNAP or WIC goods, governmental assistance

Stolen property, property with serial number removed/altered, burglary tools, etc.

ID cards, licenses, police insignia, government documents, birth certificates, etc.

Counterfeit, replica, or pirated items; tickets or gift cards that restrict transfer

Lottery or raffle tickets, sweepstakes entries, slot machines, gambling items

Spam; miscategorized, overposted, cross-posted, or nonlocal content

Messages or links the primary purpose of which is to drive traffic to a website

Messages offering, promoting, or linking to unsolicited products or services

Affiliate marketing; network, or multi-level marketing; pyramid schemes

Any good, service, or content that violates the law or legal rights of others

If we believe you are abusing our Service in any way, listed on any federal or state law enforcement watch list or, in violation of any applicable law, rules, terms and conditions, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your account and access to our Service, delay or removed hosted content, remove, not display, and/or take technical and/or legal steps to prevent you from using our Service. We may also take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service.

We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Service to anyone for any reason at our discretion.

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 using the Service. YOU WAIVE AND HOLD HARMLESS WHIPPY 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 EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

While we are not obligated to review all accounts, monitor text communications on the Service, nor conduct any background checks on Customers or users, we reserve the right to do so and take any actions (like modifying or removing content or disabling access to any part of the Service at any time) if we determine that there is any objectionable conduct or content, or violations of these Terms. We assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Each Customer represents and warrants that you have the right to use any credit card or other means of payment that you provide to us. All billing information you provide to us must be truthful and accurate. Providing any untruthful or inaccurate information is a breach of this Agreement and may result in termination of your ability to use the Service. If determined to be necessary by Whippy, Whippy may also: (a) request additional information from you prior to accepting an order, (b) verify information prior to processing any order, or (c) refuse or cancel a subscription for any reason including inaccuracies, or errors in services or pricing information, or problems identified by us related to credit or fraud. Whippy may also request a pre-authorization for some subscriptions in the event Whippy determines it necessary to confirm the card details are still valid and that you have sufficient funds to complete the transaction. Such pre-authorized amount should not be billed to you but may be subject to your card issuer holding this amount for a short period. Your card issuer determines the length of time the pre-authorization is held.

Taxes. Users are responsible for all applicable taxes. If Whippy is required under tax laws or regulations to report sales-related information you agree to provide such information to Whippy. If required in the applicable jurisdictions, Whippy reserves the right to collect any taxes from the User and pay such taxes to the relevant tax authority.

We consider any unsolicited suggestions, ideas, proposals or other material submitted to Whippy by Customers (other than the Customer Data) (collectively, the "Material") to be non-confidential and non-proprietary, and Whippy is not liable for the disclosure or use of such Material. If, at Whippy’s request, any User sends Material to improve the Service (regardless of method), Whippy will also consider that Material to be non-confidential and non-proprietary and Whippy will not be liable for use or disclosure of the Material. Any communication by Customer to Whippy is subject to this Agreement. Customer hereby grant and agree to grant to Whippy, under all of such Customer’s rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without notice, compensation or accounting to the Customer and without further recourse by the Customer.

Whippy is not responsible for the availability of outside websites or resources linked to or referenced on the Service. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Customer agrees that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.

Although Whippy attempts to maintain the integrity and accuracy of the information on the Service, we make no guarantees as to its correctness, completeness, or accuracy. The Service may contain typographical errors, inaccuracies, or other errors or omissions. If you believe that information found on the Service is inaccurate or unauthorized, please inform Whippy by e-mailing us at 

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, without regard to its conflict of law provisions.

In the event a dispute arises between a Customer and Whippy, the Customer shall provide written notice to Whippy to assess the possibility of informal resolution. Absent such informal resolution, any dispute arising from or relating to the subject matter of this Agreement or a Customer’s use of the Service or relationship with Whippy shall be finally settled by binding arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, LLC. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS.

The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction only for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the federal or state courts located in the County of Los Angeles in the State of California. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, unless expressly noted otherwise herein, including without limitation, this section.

Any arbitration under this Agreement will take place on an individual basis — class arbitrations and class actions are not permitted. You understand that by agreeing to this Agreement, you and Whippy are each waiving the right to trial by jury or to participate in a class action or class arbitration. Class arbitrations, class actions, private attorney general actions, consolidation of your dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.

Without limiting any other remedies, Whippy may, without notice, and without refunding any fees, delay or immediately remove Whippy content, issue a warning to a Customer, temporarily suspend a Customer, temporarily or indefinitely suspend a Customer's account privileges, terminate a Customer's account, prohibit access to Whippy, and take technical and legal steps to keep a Customer off Whippy and refuse to provide services to a Customer if, not intended to be an exclusive list, any of the following apply:

(i) We suspect (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a User has breached this Agreement, the Privacy Policy or other policy documents and community guidelines incorporated herein.

(ii) We are unable to verify or authenticate any of the Customer’s information or CUustomer Data.

(iii) We believe that a Customer is acting inconsistently with the letter or spirit of Whippy's policies, has engaged in improper or fraudulent activity in connection with the Service or the actions may cause legal liability or financial loss to Whippy's Customers or to Whippy itself.

Any personal information you submit to the Service or Whippy is governed by Whippy's Privacy Policy. This Privacy Policy encompasses any and all information you may provide to the Service or Whippy either for purposes of becoming a Customer of the Service, submitting feedback about the Service, or to receive further information, updates and promotions about or related to the Service or Whippy. Except as disclosed in Whippy's Privacy Policy, we will not sell your personal information (as defined in the Privacy Policy) to third parties.

WHIPPY AND ITS AFFILIATES PROVIDE THE SITE "AS IS" AND “AS AVAILABLE”, AND WITHOUT ANY WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WHIPPY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES, WHETHER IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT WHIPPY AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; AND (ii) YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, VIRUSES, OR OTHER HARMFUL MATERIALS. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

WHIPPY AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT OR REVENUES (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND (ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (a) ANY CHANGES WHICH WE MAY MAKE TO THE SITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN PROVIDING THE SITE (OR ANY SERVICES OFFERED THROUGH OR FEATURES WITHIN THE SITE), (b) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE, (c) YOUR FAILURE TO PROVIDE WHIPPY WITH ACCURATE ACCOUNT INFORMATION, (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (e) YOUR USE OR MISUSE OF THE SITE, (f) ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, AND/OR (g) HYPERLINKS TO WEB SITES OR CONTENT OR RESOURCES PROVIDED BY COMPANIES OR PERSONS OTHER THAN WHIPPY. THESE FOREGOING LIMITATIONS ON OUR LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. IN NO EVENT SHALL WHIPPY’S AGGREGATE LIABILITY FOR ANY DAMAGES EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100) OR THE AMOUNT YOU PAID WHIPPY IN THE PAST TWELVE (12) MONTHS.

YOU AGREE TO INDEMNIFY AND HOLD WHIPPY AND ITS PARENT, SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND SUPPLIERS, HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS), LOSSES, EXPENSES, AND LIABILITIES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) RELATING TO ANY CLAIM OR DEMAND ASSERTED BY ANY PARTY AGAINST WHIPPY AND/OR ITS AFFILIATES ARISING FROM OR RELATED TO YOUR ACTIVITIES, USE, BREACH, VIOLATION, INFRINGEMENT OR ANY OTHER CONDUCT ON OR THROUGH THE SITE.

We reserve the right to handle our legal defense however we see fit, even if you are indemnifying us, in which case you agree to cooperate with us so we can execute our strategy.

Entire Agreement. This Agreement (together with any Order Forms and the Privacy Policy) represent the parties' entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting or additional, communications.

Severability. If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.

No Employment or Agency. Whippy is not an employment service and does not serve as an employer of any Customer or Service Provider. Whippy is not 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 any use of the Service. By using the Service, Users understand and agree that, if Whippy is found to be liable for any tax or withholding tax in connection with your use of the Service, then you will immediately reimburse and pay to Whippy an equivalent amount, including any interest or penalties thereon.

No Agency Relationship. No brokerage, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Without limiting the foregoing, except as expressly set forth herein, Whippy is not acting and does not act as an agent for any Customer, Service Provider, or any other visitor of the Service.

Whippy Service. Whippy reserves the right to modify, limit, suspend or terminate any and all parts of the Service (or any feature thereof) for any reason, without notice, at any time.

Amendments. Whippy may amend this Agreement at any time, and from time to time, in our sole and absolute discretion, without any notice to you. You should regularly review this Agreement as posted on the Service or the Site on this page to check for amendments. You understand and agree that if you use the Service after the date on which these amendments have been applied to the Agreement, Whippy will treat your continued use of the Service as acceptance of the updated terms. You may not amend this Agreement at any time without our prior written consent.

No Waiver. You agree that if Whippy does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), it shall not constitute a waiver of Whippy’s rights, and as such, those rights or remedies will still be available to Whippy. Nothing in this Agreement shall prevent Whippy from complying with the law and these terms do not confer any third-party beneficiary rights.

Terms of Service

This Acceptable Use Policy (the “Policy”) applies to Users of these Company Properties, and is incorporated by reference into the Whippy Terms of Use at https://www.whippy.co/terms-of-service (“Terms”). In the event of any conflict between this Policy and the Terms, the terms of this Policy shall supersede to the extent of any actual conflict. Capitalized terms used herein, but undefined will have the meaning given to such term in the Terms. This Acceptable Use Policy is not to be construed as legal advice or superseding applicable law or regulation. Whippy encourages customers to seek legal counsel for all associated compliance considerations.

1. No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses

You may not use the Services to violate any applicable carrier requirements, laws, rules, or regulations issued or promulgated by any competent government authority, including, but not limited to, the federal Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), as amended, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 103 et. seq), the United States’ National Do Not Call Registry, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (47 U.S.C. § 64.1200), and (if applicable) the Canada Anti-SPAM Legislation (S.C. 2010, c. 23). Without limiting the foregoing, Registered User shall not use the Services for, or in connection with, the following:

Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.

Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.

Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.

Deceptive practices such as posing as another service for the
purposes of Phishing or Pharming.

Distributing any materials of a threatening or harmful nature,
including without limitation threats of death or physical harm, or
materials that are malicious, harassing, libelous, defamatory, or
which facilitate extortion or harmful action.

Distributing any offensive materials, including without limitation
obscene, pornographic, indecent or hateful materials and materials
which promote gambling or discrimination based on race, sex,
religion, nationality, disability, sexual orientation, or age.

Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license
from the recipient(s) of your messages.

Sending messages in violation of the National Do Not Call Registry or related considerations under applicable law.

You may not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with the Company’s or its service partners’ ability to provide the Services, or that otherwise may create legal liability for the Company or its service partners in the Company’s sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:

Hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization.

Unauthorized probes or port scans for vulnerabilities.

Unauthorized penetration tests, traffic that circumvents
authentication systems or other unauthorized attempts to gain entry
into any system.

Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.

Unauthorized network monitoring or packet capture.

Forged or non-standard protocol headers, such as altering source
addresses.

Denial of Service (DoS) attacks of any kind.

Distributing unauthorized data, malware, viruses, Trojan horses,
spyware, worms, or other malicious or harmful code.

Operating network Services such as: open proxies; open mail relays;
or open, recursive domain name servers.

Sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the terms and this Policy.

You shall not use the Services for purposes of distributing text messaging “spam,” bulk unsolicited for-profit marketing messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you have no preexisting business or personal relationship. You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Services, prior to commencing any such messaging or communication. Additionally, you shall not use the Services to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by applicable law, you must track and record all such requests specific to your business. You must also provide recipients of MMS/SMS messages you send via the Services with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:

Sending any mail in contravention of the CAN SPAM Act of 2003, the United States Telephone Consumer Protection Act (TCPA) 47 USC 227 (as amended), Canada’s Anti-SPAM Legislation (S.C. 2010, c. 23) or other applicable state or federal laws and regulations.

Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.

Whippy’s platform responds programmatically to the keyword STOP.

. This Policy is subject to occasional revision, and if the Company makes any substantial changes to this Policy, the Company will notify you and/or prominently post notice of the changes on the Website. Continued use of the Services, following notice of such changes, shall indicate a Registered User’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

We understand that there are quite a few rules to read and absorb. If you have any questions, please feel free to reach out to us at support@whippy.co.

Acceptable Use Policy

We're focused on making our website accessible and functional for all our users, including those who may have disabilities. In doing so, we look to the Web Content Accessibility Guidelines (“WCAG”) 2.0, Levels A and AA. We primarily use automated tools to assist in assessing and in improving the accessibility of our website. We view accessibility as an ongoing effort, and if you encounter an accessibility issue, please contact our website provider, Whippy, at info@whippy.co to work with you to resolve the issue.


Accessibility Statement

Whippy is committed to complying with all applicable country laws and regulations in which we operate. Our security policies and practices align with the ISO risk framework, and all customer data is hosted in data centers that are SOC2, ISO 27001 and HITRUST compliant. These data centers also support the storage of PHI in compliance with HIPAA.

Whippy follows industry standards and best practices for protecting your data. This includes encryption of data in transit and at rest, security monitoring and logging, enterprise-class endpoint detection and response solutions, continuous integration and deployment, application security testing and scans, incident response, security awareness training, and secure development lifecycle, just to name a few.

As privacy legislation and regulations continue to evolve, Whippy remains dedicated to protecting the privacy of your data by staying up-to-date on the latest privacy requirements of all regions in which our customers operate. More information is available in 

Security Policy

This Privacy Policy governs the manner in which Hello Flexy Inc. d/b/a Whippy (hereafter also referred to as “Whippy” “We” and “Us”) collects, uses, maintains and discloses information collected from users (each, a “User” or “You”) for our Websites and services (together, collectively the “Service”). By accessing the Service, you acknowledge and agree to this Privacy Policy and also agree to the Terms of Service located at 

https://www.whippy.ai/legal/terms-of-service

We reserve the right to make any changes to our Privacy Policy at any time, notice of which may be posted on this privacy page at 

https://www.whippy.ai/legal/privacy-policy

. Users must refer back to our Privacy Policy to read any changes in our Privacy Policy.

Application and Account Information. When you subscribe to our Service, you will be providing us with personally identifiable information. This refers to information about you that can be used to contact or identify you (“Personal Information”). Personal Information that we collect may include, but is not limited to, your first and last name, physical mailing address, phone number, mobile phone number, and email address. If a User is setting up an account on behalf of a Company, the User will be required to provide Company information such as, but not limited to, business license, tax identification, physical mailing address, business phone number, and business email address.

Usage Data. Besides the Personal information, we may also collect other information regarding your activity during your use of the Service including, but not limited to, session duration, time between sessions, searches made during a session, actions taken, log in time, log out time, and other behavioral data (collectively, “Usage Information”).

When you use the Service, our servers automatically record information that your browser sends whenever you visit our Service. This information may include, but is not limited to, your computer’s Internet Protocol address (IP address) or other identifier, your general location, browser type, the web page you were visiting before you came to the Service, and in-bound tracking, namely, the source (ad, social media channel or blog, search engine) which made you aware of the Service.

We may collect your personal information regarding feedback, questions, information provided when you interact with our technical support representatives. Your conversations with our technical support representatives may be recorded and monitored to improve our service, troubleshoot and protect against errors, and process and resolve your complaints or questions. We may also collect and use any files that you send to us for troubleshooting in order to improve our Service.

The Personal Information and Usage Information we collect from the Service will be used mainly as follows: (i) to provide, maintain, protect and improve the Service (including data analytics), (ii) to respond to your submissions, questions, comments, requests and complaints and provide customer service; (iii) as part of our efforts to keep the Service and integrations safe and secure; (iv) to protect Whippy’s rights or property; (v) for internal operations, including troubleshooting, data analysis, testing, research, customization, and improvements to service and experience on the Service; (vi) to send you confirmations, updates, security alerts, and support and administrative messages; and (vii) for any other legitimate business purpose for which the information was collected. We may use information to provide online advertising on the Service and to send you information we think may be useful or relevant to you. You may opt out of email marketing by using the unsubscribe link in a marketing email or you may opt out by altering your account settings.

We may anonymize and aggregate data collected through the Service and use it for any purpose and share with other partners or third parties.

WHIPPY may on occasion combine information collected with additional records (such as information from affiliated companies, partners, distributors, or outside vendors, and publicly available information, including on social media sites). The combined information may be used for purposes such as to market products, features, or services that may be of interest to you, or for research and analytics.

Whippy does not sell any User information or any User’s customer information to any third party.

Whippy may share your information: (i) where your consent is obtained, such as when you choose to opt-in to the sharing of data; (ii) with vendors and service providers retained in connection with provision of the Service, including for data analytics purposes (iii) to comply with law enforcement requests and legal process (such as a court order or subpoena) legal action or law enforcement (“Legal Reasons”); (iv) to enforce or apply this Privacy Policy, our Terms of Service (

) or our other policies or agreements; (v) respond to your requests; (vi) protect Whippy’s, your, or others’ legal rights and/or property (“Prevent Harm”); or (vii) if Whippy is involved in a merger, acquisition or asset sale, in which case the use of your information will be governed by the provisions of this Privacy Policy in effect at the time Whippy collected such information. One of the service providers that we use for data analytics is Google Analytics. If you do not want Google Analytics to collect and use information about your use of the Service, then you can install an opt-out in your web browser (https://tools.google.com/dlpage/gaoptout/).

Service Providers, Business Partners and Others

Whippy does not control the privacy policies of third parties, and you are subject to the privacy policies of those third parties where applicable. Whippy is not responsible for the privacy or security practices of other websites on the Internet, even those linked to or from the Whippy site. We encourage you to ask questions before you disclose your personal information to others.

We may employ third party service providers to facilitate our Service, to provide services on our behalf, to perform Website-related services (including but not limited to maintenance services, database management, web analytics and improvement of Whippy’s features) or to assist us in analyzing how our Website and Service are used and can be improved. These third parties may have access to your Personal Information only for purposes of performing these tasks on our behalf.

Whippy must cooperate with government and law enforcement officials and private parties to enforce and comply with the law. In the event of a claim and/or legal process (including but not limited to subpoenas), to protect the property and rights of Whippy or a third party, to protect the safety of the public or any person, or to prevent or stop any activity we may consider to pose a risk of being illegal, unethical, inappropriate or legally actionable, we reserve the right to disclose any information about you to government or law enforcement officials or private parties as we in our sole discretion find necessary or appropriate.

In the event of a bankruptcy, merger, acquisition, reorganization or sale of assets, Whippy may sell, transfer or otherwise share some or all of its assets, and your Personal Information may be transferred as part of that transaction. To the maximum extent allowable by law, the Privacy Policy will apply to the User information as transferred to the successor entity. However, User information submitted after a transfer to a successor entity may be subject to a new privacy policy adopted by the successor entity.

The security of your personal information is important to us. Your Whippy account information is protected by a password. It is important that you protect against unauthorized access of your account and information by choosing your password carefully and keeping your password and computer secure by signing out after using our services. Each password owner is responsible for keeping the password confidential and safe, as Whippy has no control or responsibility for this type of user information. You agree not to disclose or share your user information and/or password with any third party. You are responsible for any activity using your account, whether or not You authorize that activity. Please immediately notify Whippy of any unauthorized use of your account.

Whippy encrypts sensitive information (such as credit card number) using secure socket layer technology (SSL). Whippy follows generally accepted industry standards to protect the personal information submitted to us, both during transmission and once Whippy receives it. No method of transmission over the Internet, or method of electronic storage, is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security. Your data may be lost during transmission or may be accessed by unauthorized parties. We do not accept any liability for direct or indirect losses as regards the security of your Personal Information or data during its transfer over the Internet.

Whippy uses a variety of technologies to help us better understand how people use the Site.

A cookie is a small data file sent from a web site to your browser that is stored on your computer's hard drive. Whippy uses our own cookies for a number of purposes, including to access your information when you sign in; keep track of preferences you specify; display the most appropriate content based on your interests and activity on Whippy; estimate and report Whippy's total audience size and traffic; conduct research to improve our content and services. You can configure your browser's settings to reflect your preference to accept or reject cookies. If you reject all cookies, you will not be able to take full advantage of services offered by the Site.

We use Flash cookies (a.k.a. local shared objects or LSOs) to store some of your viewing preferences on our site. Flash cookies are used to collect and store information, but differ from browser cookies in the amount, type and manner in which data is stored. Whippy does not tie the information gathered by Flash cookies to your personally identifiable information.

Whippy may partner with third-party services who may use various tracking technologies, such as browser cookies or Flash cookies, to provide certain services or features. These technologies allow a partner to recognize your computer each time you visit Whippy, but do not allow access to personally identifiable information from Whippy. Whippy does not have access or control over these third-party technologies, and they are not covered by our privacy statement. You may be able to change browser settings to refuse and/or disable cookies when you access the Site through a web browser. The steps to do this vary depending on the browser used, but generally can be found by using the “Help” feature available on your browser. However, if you do that, the Site may not work properly and/or personalized features of the Site will be disabled.

Do Not Track Signals from Web Browsers – The Service is not presently configured to support Do Not Track (“DNT”) signals from web browsers.

Whippy will retain your Personal Information for as long as your account is active or as needed to provide you services. If you no longer want Whippy to use your information to provide you services, you may close your account. In some instances, we will delete or anonymize the information you provide to us after it is no longer needed. We also keep information about you and your use of the Service for long as it is necessary for our legitimate business interests, legal reasons (e.g., legal requirements to keep data), and to prevent harm to Whippy and/or its users, but we shall not keep your Personal Information for more than 7 years after your account becomes inactive.

Whippy is not directed to nor is it intended for persons under 18 years of age. We do not knowingly collect personally identifiable information (or any information at all) from any persons under 18. If we become aware that a child has provided us with Personal Information, we will delete such information from our files. Users of Whippy accept responsibility of ensuring that children are not accessing or using our Service.

For Users Outside of the United States Only

The Service is hosted on servers located in the United States. If you are a user accessing the Service from the European Union, Australia, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, you are transferring your personal data to the United States which may not have the same data protection laws as such other regions. By providing user information through the Service, you are consenting to the transfer of your information to the United States for processing and maintenance in accordance with this Privacy Policy and the Terms of Use. You are also consenting to the application of United States law in all matters concerning the Service and any services offered or provided therefrom.

For Users Residing in California -- Your California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, residents of California can obtain certain information about the types of personal information that companies with whom they have an established business relationship have shared with third parties for direct marketing purposes during the preceding calendar year. In particular, the law provides that companies must inform consumers about the categories of personal information that have been shared with third parties, the names and addresses of those third parties, and examples of the types of services or products marketed by those third parties. To request a copy of the information disclosure provided by WHIPPY pursuant to Section 1798.83 of the California Civil Code, please contact us via the email address stated below. Please allow at least 30 days for a response.

If we make any material changes to this Privacy Policy, we will post a notice on the website or application notifying users of the changes. In some cases, we also may send an email notifying users of any changes. You should check this website periodically to see if any recent changes to this Privacy Policy have occurred.

This Policy is part of the Terms of Use of the Service and any use of the Service is governed by those Terms of Service. If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us at info@whippy.co.

Privacy Policy

PLEASE READ THESE CUSTOMER TERMS CAREFULLY BEFORE USING THE SERVICES OFFERED BY HELLO FLEXY INC (“

”), LOCATED AT 10520 WILSHIRE BLVD., LOS ANGELES, CA 90024, USA, AND ITS SUBSIDIARIES OR AFFILIATES INVOLVED IN PROVIDING THE SERVICES. BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH WHIPPY WHICH REFERENCE THESE CUSTOMER TERMS (EACH, AN “

”), OR BY CLICKING A BUTTON OR CHECKBOX ON YOUR COMPUTER SCREEN INDICATING YOUR ACCEPTANCE, YOU (“

”) AGREE TO BE BOUND BY THESE CUSTOMER TERMS (TOGETHER WITH ALL ORDER FORMS AND EXHIBITS, THE “

”). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “

” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA WHIPPY’S ONLINE PROCESS AND WHICH IS ACCEPTED BY WHIPPY SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THESE CUSTOMER TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.


The Agreement also incorporate any other terms and conditions that apply generally to the access or use of WHIPPY’s website or Service, including, but not limited to, the Terms of Service 

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT IS GOVERNED BY THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER OF THE TERMS OF SERVICE, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH WHIPPY. PLEASE READ IT CAREFULLY.


1. Access and Use. Subject to these Customer Terms, WHIPPY grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the commercial offerings, platforms, and/or products provided by WHIPPY through and on its website (collectively, “

”) solely during the Term by the Authorized Users for Customer’s internal use in compliance with the Documentation. Services are subject to change or enhancement from time to time at WHIPPY’s sole discretion. While WHIPPY uses commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, WHIPPY reserves the right to suspend access to the Services: (i) for scheduled or emergency maintenance, (ii) if an Authorized User is in breach of the Agreement, (iii) if WHIPPY determines, in its sole discretion and good faith, that (A) there is a threat or attack on any WHIPPY IP; (B) an Authorized User’s use of WHIPPY IP disrupts or poses a security risk to WHIPPY IP or to any other WHIPPY customer or vendor; (C) applicable law requires; (D) if WHIPPY receives any notice or claim that any Customer Content or Customer’s activities, may infringe or violate applicable law and/or the rights of a third party; Provided, any such suspension shall be limited to only the particular Customer (or its Authorized User) who has so violated or allegedly violated this Agreement or any applicable law; (iv) any vendor of WHIPPY has suspended or terminated WHIPPY’s access to or use of any third-party services or products required to enable Customer to access the Services; and (v) any cause beyond WHIPPY’s reasonable control, including without limitation, the elements, fire, flood, severe weather, earthquake, vandalism, power, network or internet failure, acts of God, acts of war or terrorism, strikes lock-outs or labor disruptions, acts or restraints of any government (any of the foregoing, a “

”). WHIPPY shall use resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. WHIPPY will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Notwithstanding any other provision of this Agreement, WHIPPY may remove Content, including Customer Content, from the Services with or without notice to Customer if Whippy reasonably believes that such Content violates the terms of this Agreement and/or applicable laws. WHIPPY is not required to provide any services other than those expressly described and paid for by Customer pursuant to an Order Form. However, if WHIPPY does provide an additional service beyond those in an Order Form (including, without limitation, excess Whippy Credits, capacity, Authorized Users, hours, overages, etc.), Customer will pay WHIPPY at its then-current rates therefor.

2. Intellectual Property. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to any part or component of the Service (collectively, “

”). Notwithstanding anything else, WHIPPY may use Customer Content solely to fulfill its obligations and exercise its rights under this Agreement.

3. Customer Responsibilities. Customer shall at all times comply with (and ensure each Authorized User’s compliance with) the Agreement and the Vendor Agreement (as defined below). Customer will cooperate with WHIPPY by making available such personnel and information as may be reasonably required and taking such other actions as WHIPPY may reasonably request, to the extent permitted by law. Customer will designate an employee who will provide prompt responses to WHIPPY in connection with this Agreement (“

4. Content. Customer is solely and exclusively responsible for its (including its Authorized Users’) use of the Services, including but not limited to, Customer Content. Customer Content, as between Customer and Whippy, shall be and at all times remain owned by Customer. Customer must ensure that its use of the Services complies with all applicable laws, carrier requirements and standards, and third party rights, including but not limited to, those relating to privacy, data protection, consumer protection, intellectual property, network or carrier rules, etc. WHIPPY shall not be responsible or liable to Customer (or any third party) for any change in the Service required due to carrier(s) (or their requirements), including without limitation, reductions in speed, rate, quantity/quality of messages, capacity, or otherwise. WHIPPY also does not guarantee that any features of the Service will ensure Customer’s responsibility to comply with any opt out requirements, and WHIPPY shall not be responsible or liable for any such failure, including without limitation, refunds, costs, charges, or penalties. Customer acknowledges that WHIPPY is not liable for any errors or omissions in the Customer Content and agrees that WHIPPY has no duty or obligation to screen, filter, regulate, or update any Customer Content. WHIPPY is not responsible in any way for any matter in connection with Customer’s interactions with third parties, including other users, websites or services not owned or controlled by WHIPPY, even though the Services may allow such interactions and/or provide links or connections thereto. Any exchange of data or other interaction between Customer and a third party is solely between Customer and such third party. WHIPPY has no control over, and assumes no responsibility for, the WHIPPY shall not be responsible or liable for any loss or damage of any sort incurred as the result of Customer’s dealings with any third party through Customer’s use of the Services (including, without limitation, any downgrade or penalty on Customer’s rating with carriers). If there is a legal action with respect to, or a dispute between, Customer and third parties or any governmental authority, Customer agrees that WHIPPY is under no obligation to become involved, and Customer releases WHIPPY, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or related to such actions or disputes.

5. Fees; Payment. Each Service must first be paid for by Customer at the prices, rates, and/or fees applicable or each such Service, along with any fees, costs, or charges required by the applicable third party service provider (collectively, “

”). For access to any Service, Customer must provide WHIPPY with authorized billing account information, along with any related Service-dependent information WHIPPY may require (e.g., number of Authorized Users, Whippy Credits range and/or capacity, etc.). By providing such information, Customer (individually or on behalf of the organization or business entity) is agreeing to pay and authorizing WHIPPY to save and automatically charge Customer’s credit card (and/or other payment account or information provided) all amounts for due and for future Fees due to WHIPPY for the Services, overages (excessive use), purchases of Customer, taxes, and any third party (e.g., carrier, telecommunications, mobile network, international and/or long distance charges, etc.) costs, tariffs, or charges, all of which are Customer’s sole responsibility and which WHIPPY reserves the right to pass through to and so collect from Customer. Except as otherwise set forth in the Vendor Agreement, charges are neither refundable nor prorated upon cancellation or termination. There are no carryovers (or refunds) for un-used capacity (such as, SMS Whippy Credits Messages) or benefits from any month(s). All payments must be made in US dollars. Unless WHIPPY specifies otherwise, subscriptions and accounts for each Service are automatically billed at least on a monthly basis (without the need of any WHIPPY interface, Order Form or transaction). WHIPPY reserves the right to change or update any of the terms and features of any subscription or Service (e.g., the amount, price, and/or structure of Fees; usage, capacity, or Whippy Credits ranges; etc.). Such changes will be notified to Customer via posting on the applicable page of WHIPPY’s website, displayed on WHIPPY's pricing page (

and/or direct written notice or email to Customer, and the change(s) take effect automatically on the first day of the immediately following month of Service (unless WHIPPY specifies otherwise). Customer’s use or access to the Services thereafter constitutes Customer’s affirmative acceptance of any such change. Customer will be charged interest of 1.0% per month calculated daily and compounded monthly, or the highest rate permitted under applicable law, for any late/non-payments. Customer will also be liable for costs incurred by WHIPPY in collecting any late payments or interest (such as, attorneys’ fees, court costs, and collection agency fees). WHIPPY may also suspend Customer access to the Services until all amounts are paid in full. In addition to WHIPPY’s right to change the pricing applicable to any Services at any time, on the first anniversary of the provision of any Services hereunder and each anniversary thereafter, the price of such Service shall increase by the greater of (a) five percent (5%) and (b) the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the preceding 12-month period, as published by the U.S. Bureau of Labor Statistics (the “Pricing Escalator”), which Pricing Escalator shall compound and accrue on each such anniversary. WHIPPY may, in its sole discretion,
waive some or all of the Pricing Escalator at any time and from time to time, provided, that the Pricing Escalator shall continue to compound and accrue each anniversary, regardless of whether or to the extent to which it is waived by WHIPPY.


6. Disclaimers. Customer accesses the Services and all Content provided on or through the Services at Customer’s own risk. No Content, or any other information, summaries, or documents received from WHIPPY can or should be construed as professional advice of any kind (including, without limitation, business, employment, investment, accounting, tax, and/or legal advice).


7. Indemnification by Customer. Customer shall indemnify, hold harmless, and, at WHIPPY’s option, defend WHIPPY from and against any and all any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“

”) in connection with Customer Content which violates the terms of this Agreement and/or applicable law or Customer’s use of any Service in violation of this Agreement, including without limitation, the breach, negligence, willful misconduct, violation of law or third party rights, or other act or omission of Customer (or its Authorized User). Customer may not settle any third-party claim, suit, action, or proceeding against WHIPPY unless WHIPPY consents to such settlement. WHIPPY will have the right, at its option, to defend itself against any such proceeding or to participate in the defense thereof by counsel of its own choice.

8. Liability Limit. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY (WHETHER BY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, AND OTHERWISE) FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT PURSUANT TO THE VENDOR AGREEMENT, FURTHER, IN NO EVENT WILL WHIPPY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY (WHETHER BY BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, AND OTHERWISE) EXCEED THE LIABILITY AMOUNT SPECIFIED IN THE TERMS OF SERVICE (IF NONE IS STATED IN THE TERMS OF SERVICE, THEN LIABILITY SHALL NOT EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100) OR THE AMOUNT CUSTOMER PAID WHIPPY IN THE PRECEDING TWELVE (12) MONTHS). 

9. Term; Termination. Unless terminated earlier pursuant to this Agreement’s express provisions: (a) the initial term of each Service (and its applicable Order Form) begins on the date of such Order Form and continues in effect for the initial term specified in the applicable Order Form (the “

”), and (b) the Initial Term will automatically renew at the end of each Term for additional periods equal in length to the length of the Initial Term (except as otherwise agreed by WHIPPY, each a “

” and, together with the Initial Term, the “

”). If there is no Order Form applicable to Customer’s purchase of Services, then the Services will be rendered on a month-to-month basis, with the Initial Term commencing on the date on which Customer first purchases Services and continuing until such date of the next full month thereafter, and each monthly Renewal Term commencing on such date of each month thereafter. At any time, WHIPPY may, in its sole discretion, set the term of a Renewal Term at the balance of the then-applicable month, so that all subsequent Renewal Terms begin on the first day of the month. This Agreement will automatically renew for successive Renewal Terms unless either party delivers written notice of nonrenewal at least 30 days prior to the expiration of the then-current Term. This Agreement enters into full force and Effective Date and shall continue until the expiry, non-renewal, or termination of all Order Forms. Either party may terminate this Agreement at any time for any reason upon thirty (30) days’ notice to the other. Upon any expiration, non-renewal, or termination, Customer shall (1) immediately discontinue use of the Services and WHIPPY IP, (2) delete, destroy, or return all copies of WHIPPY IP, and (3) if requested by WHIPPY, certify in writing that all WHIPPY IP has been deleted. Upon any expiration, non-renewal, or termination, Whippy shall (1) promptly return all Customer Content to Customer in a format reasonably acceptable to Customer or (2) continue to provide Customer access to the Services for a reasonable time (not less than 30 days) for the sole purposes of allowing Customer to export all Customer Content. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All provisions required to give effect to any rights and obligations accruing prior to and through termination, non-renewal, or expiration of this Agreement shall survive to allow enforcement thereof.


10. Miscellaneous. This Agreement, represents the entire agreement between Customer and WHIPPY with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties (whether written, oral, or electronic) between Customer and WHIPPY with respect thereto. In the event of any conflict between Customer Terms and the Vendor Agreement, the Vendor Agreement shall control. Except as otherwise provided in this Agreement, this Agreement may be amended only by a writing executed by both parties. Customer may not assign any of its rights or obligations hereunder without WHIPPY’s prior written consent. WHIPPY may assign any rights and obligations hereunder without consent, including but not limited to, a successor-in-interest in connection with a sale of substantially all of its business relating to this Agreement, affiliates, and/or subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. The delay or omission by WHIPPY to exercise any right, power or remedy under this Agreement shall not impair any such right, power or remedy of WHIPPY nor shall it be construed to be a waiver of any breach or default by Customer, or an acquiescence by WHIPPY; nor shall any waiver by WHIPPY of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of WHIPPY of any breach or default under this Agreement, or any waiver as to any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to WHIPPY, shall be cumulative and not alternative. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

11. Definitions. The following capitalized terms have the described meanings: (A) “

” means Customer’s employees authorized by Customer to access and use the Services under the rights granted to Customer by this Agreement, and for whom access to the Services has been purchased by Customer via Order Form(s). (B) “

” means materials including, but not limited to, text, graphics, data, articles, photos, images, illustrations, information, and other content that are submitted, displayed, available on, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services. (C) “

” means any Content that is submitted, provided, shared, uploaded, posted, or otherwise transmitted through or on the Services by or on behalf of Customer or Authorized User(s). (D) “

” means WHIPPY’s user manuals, websites/pages, and guides relating to the Services, as may be provided or made available by WHIPPY.