Effect on Jan 21, 2025
ARTICLE I
IMPORTANT TERMS
1.1 Key Terms. This Terms of Use (“ToU”) contains the terms and conditions that how WhaleFlux, LLC’s (“WhaleFlux” or “it”) product “WhaleFlux” treats its Member’s use and access of the Platform (as defined below), and the relationships between WhaleFlux and its Members. This ToU will cover and apply to the WhaleFlux, and such product’s whole website and related sites, all the related applications, and any other services (collectively, “Platform”) made and available to the Member by WhaleFlux.
1.2 Binding Effect. Please review this ToU carefully and thoroughly. Please note that by registering, accessing and using the Platform, Member agrees to be bound by this ToU and all the terms and conditions herein. Moreover, please note that if Member is an individual, Member in this ToU shall also include Member’s heirs, assigns, and successors. If Member is an entity, Member in this ToU shall also include its directors, officers, employees, contractors and agents. If Member is an individual but such Member is registering, accessing and using the Platform on behalf of an entity, such Member represents and warrants that he/she has the authority to bind that entity by accepting this ToU and all the terms and conditions herein.
ARTICLE II
DEFINITION
2.1 “Member” means an individual person or entity who goes through WhaleFlux’s account registration process and accepts all terms and conditions of the ToU, Privacy Policy and other related rules and policies.
2.2 “Member Content” means all content submitted, posted, uploaded, published, or transmitted on or through the Platform by any Member.
ARTICLE III
REGISTRATION AND LICENSE
3.1 Registration. An individual or entity has to go through WhaleFlux’s account registration process and accepts all terms and conditions of the ToU, Privacy Policy and other related rules and policies in order to create an account (“Account”) and then become a Member of the Platform. Member agrees to provide accurate, current, and complete information during the registration process and at all times when Member use the Platform, and to update information to keep it accurate, current, and complete. Member is solely responsible for safeguarding Member’s WhaleFlux account. Member is solely responsible for all activities that occur on Member’s Account, and Member agrees to notify WhaleFlux immediately of any unauthorized use. WhaleFlux is not liable for any claims, losses or damages raised by any party caused by unauthorized use of Member’s Account. Notwithstanding the foregoing, Member may be liable for the claims, losses or damages raised by WhaleFlux or others due to such unauthorized use.
3.2 License. Subject to Member’s compliance with the ToU, Privacy Policy and other related rules and policies, WhaleFlux grants Member a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to use and access the Platform. Member agrees not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Content, except as expressly permitted by WhaleFlux. The Platform and Content are provided to Member under AS IS status. Except specifically described in this ToU or under specific permission from WhaleFlux, no licenses or rights are granted to Member by implication or otherwise under any intellectual property rights owned or controlled by WhaleFlux or its licensors.
3.3 Relationship. No agency, partnership, joint venture, or employment is created as a result of the ToU or any Member’s use or access of any part of the Platform. Neither WhaleFlux nor any Members may have or expect any control over the activities or operation of the others. Member shall not have any assumption on any obligations to WhaleFlux except specificity described in this ToU or Private Policy. Members are required by ToU to provide accurate information, and although WhaleFlux may undertake background checks and investigation which intends to help verify the identities or backgrounds of Members, WhaleFlux does not obligate to conduct any background checks or investigations, and does not make any representations about, confirm, or endorse any Members or their purported identity or background.
3.4 Links. The Platform may contain links to other websites or resources over which WhaleFlux does not have any control. Such links do not constitute an endorsement by WhaleFlux of those external websites. Member acknowledges that WhaleFlux is providing these links to Member only as a convenience, and further agrees that WhaleFlux is not responsible for the content of such external websites or the protection and privacy of information.
3.5 Limitation on Legal Claims. By using the Platform, Member understands and agrees that any legal remedy or liability that Member seek to obtain for actions or omissions of other Member or third parties will be limited to a claim against those particular Member or third parties. Member agrees not to or attempt to impose liability on or seek any legal remedy from WhaleFlux with respect to such actions or omissions.
ARTICLE IV
MEMBER’S REPRSENTATIONS AND WARRANTIES
4.1 Age. Access and use of the Platform is available only to individuals who are at least 21 years old and can legally form binding contracts and agreements under applicable law. By registering, accessing or using the Platform, Member represents and warrants that Member is at least 21 years old.
ARTICLE V
MEMBER CONTENT AND LICENSE
5.1 Member Content. Member’s publication of Member Content on or through Platform is under sole and absolute discretion of WhaleFlux. By using or accessing the Platform, Member hereby grants to WhaleFlux a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on or through, by means of or to promote, market or advertise the Platform, or for any other purpose under sole and absolute discretion of WhaleFlux. Such license granted to WhaleFlux shall survive the cancellation of Member’s Account.
5.2 Responsibility. Member acknowledges and agrees that Member are solely responsible for all Member Content that Member make available on or through the Platform. Accordingly, Member represents and warrants that Member is the sole and exclusive owner of all Member Content that Member published on or through the Platform or Member has all required consents and licenses from any third party to grant such rights to WhaleFlux related to such Member Content. Member also represents and warrants that the publication of Member Content or WhaleFlux’s use of Member Content will NOT infringe, misappropriate or violate any related intellectual property rights, including but not limited to copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or result in the violation of any applicable law or regulation.
5.3 Rights. Member acknowledges and agrees that WhaleFlux can proofread, summarize, edit or withdraw Member Content under its sole and absolute discretion.
5.4 Prohibition. Below is the list of activities and Content which strictly prohibited by WhaleFlux:
ARTICLE VI
FREE TRIAL AND TAXES
6.1 Fee. In addition to any fees set forth in other agreement with Member, each Member will pay WhaleFlux all fees charged to Member’s account for the usage of Platform according to the prices and terms agreed by parties (collectively, “Fees”). Member shall provide complete and accurate billing information including a valid and authorized payment method. Member authorizes WhaleFlux and its affiliates, and its third-party payment processor(s), to charge Member’s payment method for the Fees. Except as otherwise specified herein or in other agreement between parties, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
6.2 Inform. Member acknowledges that WhaleFlux will inform Member for any fees by written mail, email, in-app message, or phone call. Member also acknowledges that such communication may be made by WhaleFlux or by a third-party collection agent.
6.3 Taxes. According to applicable laws of certain jurisdictions, WhaleFlux may be required to collect taxes from Member in connection with the payment for the usage of Platform, and Member shall be responsible for such taxes. Member agrees to pay taxes to WhaleFlux when a charge for taxes is required by applicable laws of certain jurisdictions. Member acknowledges and agrees that it is Member’s solely responsible for determining Member’s own tax consequences by consulting with Member’s own tax advisers, and WhaleFlux does not offer any tax advice to any Member.
ARTICLE VII
CONFIDENTIALITY
7.1 Confidentiality. The Platform may include non-public, proprietary, or confidential information of WhaleFlux and/or of other Members (“Confidential Information”). Confidential Information includes any information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, and marketing information. Member will: (a) treat as confidential and preserve the confidentiality of all Confidential Information; (b) take the same degree of care to prevent disclosure of Confidential Information obtained under this Agreement as it takes to preserve and safeguard its own confidential or proprietary information, but, in any event, no less than a reasonable degree of care; (c) use the Confidential Information solely for the use of Platform; (d) not disclose or make available such Confidential Information (or permit others to do so) unless specifically authorized by WhaleFlux; (e) limit dissemination of the Confidential Information solely to its and its affiliates’ employees and agents (“Representatives”) to whom disclosure is necessary for the Purpose, but only if such Representatives have agreed prior to receiving the Confidential Information, to maintain the confidentiality thereof on terms at least as protective of the Confidential Information as set forth herein.
ARTICLE VIII
INTELLECTUAL PROPERTY
8.1 Intellectual Property. Member acknowledges and understands that WhaleFlux owns copyright, trademark, service mark, trade secret, patent rights, logos and all other intellectual property (“Intellectual Property”). All the Intellectual Property is protected by copyright, trademark, and other laws of the United States. Member agrees to disclaim all rights or interests over the Member Content published on the Platform and will promptly assign and transfer such entire interest exclusively to WhaleFlux.
ARTICLE IX
PROMOTIONS AND ADVERTISING
9.1 Promotion. Member may receive certain advertisements from WhaleFlux (“Promotions”), including but not limited to discounted or free use of the Platform for a limited period. Any Promotions are offered at WhaleFlux’s sole and absolute discretion, and may be revoked at any time with or without causes or reasons.
9.2 Eligibility. Member acknowledge that he/she is only eligible for any benefits described in the Promotion if such Member received the Promotion directly from WhaleFlux with an activated Account, and Member satisfies all the pre-requisites of such Promotion. Member acknowledges and agrees that each Promotion is an invitation of offer, which WhaleFlux may accept and perform under its sole and absolute discretion. WhaleFlux reserves absolute and exclusive rights to explain and interpret the Promotion.
ARTICLE X
PENALTIES FOR VIOLATION AND LIMITATION OF LIABILITIES
10.1 Termination of Account. Member acknowledges that WhaleFlux has sole and absolute discretion, with or without prior notice and at any time, with or without cause, decides to suspend, terminate, deactivate or cancel Member’s Account in whole or in part. When Member’s Account will be suspended, terminated, deactivated or cancelled, Member will not be able to access the Platform or Member Content, or receive any services from WhaleFlux. Member acknowledge that he/she will not be entitled to any remedies due to the Account suspension, termination, deactivation or cancelation. Please note that if Member’s Account is suspended, terminated, deactivated or cancelled, WhaleFlux does not have an obligation to delete or return any Content to Member which has been posted on the Platform.
10.2 Penalties. Member acknowledges and agrees that WhaleFlux may, under its sole and absolute discretion, take any action permitted by law for any violation of this ToU, Private Policy or any other rules and policies between Member and WhaleFlux. The actions may include but not limited to removing Member Content, limiting Member’s access to the Platform, demanding owed Fees from Member, assessing monetary penalties or costs, terminating Member’s Account, notifying other Members of the termination of Member’s Account, conducting investigation on Member, and/or cooperating with law enforcement authorities for investigation or legal proceeding.
10.3 Limitation of Liabilities. MEMBER ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT OF APPLICABLE LAWS, MEMBER SHALL BEAR ALL THE RISKS ARISING OUT OF USING AND ACCESSING THE PLATFORM. IN NO EVENT WhaleFlux AND ANY OF ITS AFFILIATES, SUBSIDIARIES, DIRECOTRS, OFFICERS, EMPLOYEES, AGENTS AND ANY OTHER PARTY SERVICE PROVIDER CAN BE HELD LIABLE FOR ANY CLAIMS ON THE DAMAGES OF THE MEMBER ARISING FROM OR RELATING TO THE PLATFORM, TOU, PRIVATE POLICY AND CONTENT, NO MATTER WHETHER WhaleFlux HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. NEVERTHELESS, IN NO EVENT WhaleFlux CAN BE HELD LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL. IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF WhaleFlux AND ITS AFFILIATES, SUBSIDIARIES, DIRECOTRS, OFFICERS, EMPLOYEES, AGENTS AND ANY OTHER PARTY SERVICE PROVIDER IN CONNECTION WITH THE OPERATION OF THE PLATFORM CAN EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO WhaleFlux BY MEMBER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
ARTICLE XI
DISPUTE RESOLUTION
11.1 Initial. Member agrees to reach WhaleFlux’s helpdesk at hello@whaleflux.com for any initial dispute resolution. Both Member and WhaleFlux agree to use their best efforts to settle any initial dispute, claim, question, or disagreement directly through good faith consultation and negotiation, before either party process with any further proceeding.
11.2 Arbitration. Both Member and WhaleFlux agree that in the event a dispute related to the Platform cannot be resolved independently by good faith negation between Member and WhaleFlux, at WhaleFlux’s request, Member agrees to participate in a neutral resolution or mediation conducted by WhaleFlux or a neutral third-party mediator or arbitrator selected by WhaleFlux. Notwithstanding the foregoing, Member acknowledges and agrees that WhaleFlux is under no obligation to become involved in or impose resolution in any dispute between Members or with any third party service provider. Both Member and WhaleFlux agree that any dispute shall be governed by and interpreted in accordance with the laws of State of Delaware, without regard to principles of conflict of laws. The parties will submit all disputes to arbitration in New York City, NY, before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by WhaleFlux. Neither Member nor WhaleFlux will challenge the jurisdiction or venue provisions as provided in this section.
11.3 Class Action Waiver. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT MEMBER IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
ARTICLE XII
DISCLAIMERS
12.1 Disclaimers. MEMBER’S USE OF THE PLATFORM OR CONTENT SHALL BE SOLELY AT MEMBER’S OWN RISK. MEMBER ACKNOWLEDGES AND AGREES THAT WhaleFlux DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO MONITOR AND REVIEW MEMBER CONTENT, OR CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS OR INVESTIGATION ON ANY MEMBER. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WhaleFlux AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM (I) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; (II) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; (III) ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM; AND (IV) ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM. WhaleFlux MAKES NO WARRANTY THAT THE PLATFORM WILL MEET MEMBER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WhaleFlux ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO MEMBER’S COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF MEMBER’S ACCESS TO OR USE OF THE PLATFORM. WhaleFlux SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY MMEMBER OR THIRD PARTY SERVICE PROVIDER, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WhaleFlux OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. MEMBER ARE SOLELY RESPONSIBLE FOR ALL OF MEMBER’S COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OR THIRD PARTY SERVICE PROVIDER. WhaleFlux MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS OF THE PLATFORM. MEMBER AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM MEMBER COMMUNICATE OR INTERACT AS A RESULT OF MEMBER’S USE OF THE PLATFORM. WhaleFlux EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY MEMBERS OR THIRD PARTIES.
ARTICLE XIII
MISCELLANEOUS
13.1 Modification. WhaleFlux reserves the absolute rights to modify this ToU, and any other documents referenced herein or related to the operation of the Platform under its sole discretion, at any time and without prior notice to the Member. WhaleFlux will notify Member of changes by sending emails to Member’s registered email address and posting modified version on the Platform. Modifications will become effective on the date listed in the title. Member acknowledges that by using and accessing the Platform, Member agrees to comply with the then in effect ToU. Please review WhaleFlux’s Privacy Policy for information regarding WhaleFlux’s collection and use of Member’s information.
13.2 Governing Law and Venue. This ToU will be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law of such state. Member may have against WhaleFlux that is not subject to arbitration must be resolved solely in any state or federal court located in New York City, NY. Both parties hereby submit to the exclusive jurisdiction and venue of any such court.
13.3 Indemnification. Member agrees to release, defend, indemnify, and hold WhaleFlux and its affiliates, subsidiaries, officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (i) Member’s violation of this ToU, Privacy Policy and other rules and policies between Member and WhaleFlux; (ii) Member Content; (iii) Member’s interaction or dispute with other Member; and (iv) any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with the use of the Platform.
13.4 Force Majeure. Except payment obligations, neither WhaleFlux nor Member shall be held liable for any failure or delay in the performance of its obligations under this ToU if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of either party so defaulting or delaying in the performance of this ToU, for so long as such force majeure event is in effect. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within five (5) business days of its occurrence.
13.5 Release. Member hereby releases WhaleFlux, its affiliates, subsidiaries, officers, directors, employees and agents from all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses, in each case of every kind and nature, known and unknown, arising out of a dispute between Member and a third party (including any other Member) in connection with the use of Platform. In addition, Member waives any applicable law that says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE RELEASED PARTY.”.
13.6 Notice and E-SIGN Consent. Member agrees that WhaleFlux may provide Member with notices, including those regarding changes to the ToU, by email, regular mail, or postings on the Platform. WhaleFlux, other Member or third party service providers may also contact Member by telephone, email, or through text messages. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto or to any other documents related to the Platform, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereby waive any objection to the contrary.
13.7 Entire Agreement: This ToU, together with the Privacy Policy and any other rules and policies published by WhaleFlux on the Platform, shall constitute the entire arrangement between the parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the parties, whether written, oral, electronic or otherwise.
13.8 Waiver. No waiver of any term or right in this ToU shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this ToU shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this ToU thereafter.
13.9 Notices. All notices to WhaleFlux or other communications required under this ToU shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) through email, addressed to WhaleFlux to be notified at the following address:
WhaleFlux, LLC
614 N Dupont Hwy, Suite 210
Dover, DE 19901
hello@whaleflux.com
13.10 Statute of Limitations. Member explicitly agrees that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
13.11 Section Headings: The section headings in this ToU are for convenience only and have no legal or contractual effect.