Terms of Service
Effective date: July 20, 2020
Welcome to Womply. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Mailing Address: 548 Market Street, #73871, San Francisco, CA 94104
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
IF YOUR THIRD-PARTY SERVICE PROVIDER OR AGENT (FOR EXAMPLE, YOUR PAYMENT PROCESSING VENDOR) ENROLLED YOU OR YOUR BUSINESS IN THE SERVICES, AND YOU WISH TO CANCEL THE SERVICES, PLEASE CONTACT WOMPLY AT THE PHONE NUMBER ABOVE.
YOU ARE RESPONSIBLE FOR ANY AND ALL ACTS AND OMISSIONS OF YOUR EMPLOYEES AND CONTRACTORS, OR ANY INDIVIDUAL WHO LOGS IN TO THE SERVICE USING YOUR ACCOUNT AND PASSWORD.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at womply.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about privacy and confidentiality?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at email@example.com.
Health Insurance Portability & Accountability Act
You understand that Womply or its business partners has disclosed or may disclose information relating to Womply’s or Womply’s business partner’s technology or business (hereinafter referred to as “Proprietary Information”).
You agree: (i) to give access to such Proprietary Information solely to those employees, contractors and Womply partners with a need to have access thereto for purposes of this Agreement and who are bound by confidentiality obligations consistent with the terms of this Section, (ii) to take materially the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that you take with your own proprietary information, but in no event will you apply less than reasonable precautions to protect such Proprietary Information, and (iii) not to use the Proprietary Information for any purpose except as necessary for the exercise of your rights or to fulfill your obligations under this Agreement. Womply agrees that the foregoing will not apply with respect to any information that you can document: (a) is or becomes generally available to the public through no fault of you, or (b) was in your possession or known by you without restriction prior to receipt from Womply, or (c) was rightfully disclosed to you without restriction by a third party, or (d) was independently developed by you. Nothing in this Agreement will prevent you from disclosing Proprietary Information to the extent expressly required by a judicial or governmental order, provided that you give Womply reasonable prior notice of such disclosure to contest such order. For clarity, the Womply pricing and payment terms applicable to you and any reports prepared by Womply related to the Services (even if such reports contain your data as allowed by these Terms) are Proprietary Information.
You agree that Womply may use or disclose certain User Data to the extent that Womply believes such use or disclosure may be necessary to: (i) conform to applicable laws or regulations, or with legal processes; (ii) bring legal action to defend and protect Womply’s rights or property (or that of Womply’s other users or partners or other third parties); (iii) act under exigent circumstances to protect the personal safety of Womply’s users, partners, customers, employees, agents, or the public; (iv) administer its network to maintain performance for its customers/clients; (v) provide the Services.
You agree that Womply and its employees and contractors may store, use and process: (i) Your (and your employees’ and contractors’) contact information in connection with Womply’s provisioning or performance of the Services, including your account administration, maintenance and support activities, billing and invoicing, Womply’s internal customer and market analysis and reporting, and to communicate to you regarding products and services; and (ii) your billing, User Data and/or your credential data in connection with Womply’s provisioning or performing of the Services, including your account administration, third-party account administration (e.g.,: Facebook, Google, etc.), billing, invoicing and payment processing. It is your responsibility to obtain your employees’ and contractors’ consent for Womply to use their contact data in accordance with this section.
In the event that you had disclosed any confidential information to Womply or that a payment processor had provided such information on behalf of you to Womply prior to these Terms taking effect, such disclosure will be governed by these Terms, and not any prior confidentiality agreement or terms.
What are the basics of using Womply?
You may be required to sign up for an account (“Womply Account”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself and/or your business. Womply reserves the right to seek additional information from you at any time, including without limitation as needed to provide the Services. You may not select as your Womply Account a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third-Party Account”), such as those offered by your credit card processor, Google, Facebook, or Intuit. By using the Services through a Third-Party Account, you permit us to access certain information from such account for use by the Services and share your account information for purposes of opening and supporting your Third-Party Account. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third-Party Account. In order to use these Third-Party Accounts, you may be required to accept third-party terms of service and privacy policies (“Third-Party Terms”). You are responsible for (i) complying with these Third-Party Terms and (ii) the accuracy and completeness of any data shared with your Third-Party Account. You understand that (i) you will access and manage your Third-Party Account through the Service, (ii) Third-Party Account notifications will be sent by Womply and not the third-party associated with your Third-Party Account, and (iii) funds held in these Third-Party Accounts may be held by third-party financial institutions. For Third-Party Account support please contact firstname.lastname@example.org.
You represent and warrant that you (i) are an individual 18 years or older and (ii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
If, after your acceptance of these Terms, Womply finds that you do not have the legal authority to bind such organization or entity, the party having agreed to these Terms will be personally responsible for the obligations contained in these Terms, including, but not limited to, payment obligations. Womply shall not be liable for any loss or damage resulting from Womply’s reliance on any instruction, notice, document or communication reasonably believed by Womply to be genuine and originating from you, as an authorized representative of your organization or entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Womply reserves the right (but undertakes no duty) to require additional authentication.
You will only use the Services in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. You’re responsible for any activity associated with your Womply Account.
You will not share your Womply User ID, account or password with anyone, and you must protect the security of your Womply User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your Womply User ID and account.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that Womply sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want Womply to send you information that we think may be of interest to you, which may include Womply using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from Womply, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Womply. You agree to indemnify and hold Womply harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of anyone else (including Womply);
- violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Womply;
- is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- jeopardizes the security of your Womply Account, account or anyone else’s (such as allowing someone else to log in to the Services as you);
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies, monitors or stores any significant portion of the Content;
- decompiles, reverse engineers (except to the extent applicable law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such law (such as for interoperability purposes) and only to the extent that Womply does not make the requisite interoperability information available to you through another means), or otherwise attempts to obtain the source code or underlying ideas, algorithms, documentation, reports or information of or relating to the Services;
- modifies, translates, or creates derivative works based on the Services; or
- uses the Services for timesharing or service bureau purposes.
Further, you represent, warrant, and covenant that that you will refrain from certain business activities or transactions using the Services in any manner that is prohibited, including without limitation, that:
- enables illegal activity, or that promotes or encourages illegal activity;
- promotes, encourages or engages in pornography, child pornography or the exploitation of children;
- encourages or engages in terrorism, violence against people, animals, or property;
- violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware;
- contains false or deceptive language, or unsubstantiated or comparative claims, regarding the Services; or
- promotes or enables internet/mail order/telephone order cigarette, tobacco or vaporizer sales, drug paraphernalia, occult materials, hate or harmful products, escort services, engagement involving debt collection; or any activity encouraging or allowing the transaction of business with stolen goods or services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Womply’s) rights.
Subject to the terms and conditions of this Agreement, Womply grants you a limited, non-exclusive, non-sublicenseable, royalty-free, non-transferrable right to access and use the Services. Further, subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that Womply owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Except as expressly set forth herein, Womply (and its licensors, where applicable) will retain all intellectual property rights relating to the Services (and any technology powering the Services), any and all as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services, which you hereby assign to Womply. Womply reserves all rights not expressly granted to you hereunder.
What about anything I contribute to the Services – do I have to grant any licenses to Womply or to other users?
This authorization shall remain in full force and effect until you notify Womply in writing to stop the use of User Data in connection with the Services. Womply shall honor User’s notice to stop such transmission of User Data in a commercially reasonable timeframe after receipt of such notice.
Anything posted, uploaded, shared, stored, or otherwise provided through the Services by your or for you by an authorized third party is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions contributed to the Services. You represent that your User Submissions are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
IF YOU AUTHORIZE OR HAVE AUTHORIZED (DIRECTLY DURING SIGNING UP FOR THE SERVICES OR INDIRECTLY THROUGH YOUR AGENT) WOMPLY TO RETRIEVE USER SUBMISSION FROM THIRD-PARTY SERVICES, FOR PURPOSES LIMITED TO THESE TERMS, YOU HEREBY GRANT WOMPLY A LIMITED POWER OF ATTORNEY, AND APPOINT WOMPLY AS YOUR ATTORNEY-IN-FACT AND AGENT, TO ACCESS SUCH THIRD-PARTY SERVICES ON YOUR BEHALF AND RETRIEVE AND USE SUCH USER SUBMISSION WITH THE FULL POWER AND AUTHORITY TO DO AND PERFORM EACH THING NECESSARY IN CONNECTION WITH ENGAGING AND ENABLING THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WHEN WOMPLY IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD-PARTY SERVICES, WOMPLY IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE NOT SPONSORED OR ENDORSED BY ANY THIRD PARTIES ACCESSIBLE THROUGH THE SERVICES.
You agree that User Submissions will not: (i) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, or any other dubious money-making ventures; or (viii) that violate any law.
By submitting User Submissions through the Services, you hereby do and shall grant Womply a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Finally, you understand and agree that Womply, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by Womply. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Womply is not responsible for such risks.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Womply shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Womply is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Womply, its directors, 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 in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will Womply ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Use of the Services following a notice by Womply that Services have been updated, modified or restricted constitutes your acceptance of the Terms as modified.
Do the Services cost anything?
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
- Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. For example, some Paid Services will charge a fee for downloading or installing the Services through the App Store (as defined below) linked to your specific device. You agree to comply with, and your license to use our mobile application is conditioned upon your compliance with, such App Store terms and conditions. Any refunds relating to the applications or inquiries regarding refunds relating to the applications shall be handled solely by the applicable App Store in accordance with such App Store’s terms and conditions.
- Billing. We may use third-party payment processors (the “Payment Processors”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to these Terms. We are not responsible for any error by, or other acts or omissions of, the Payment Processors. By choosing to use Paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processors, to charge you through any of your activated payment providers (your “Payment Methods”). You agree to make payment using that selected Payment Methods. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
- Payment Disputes. If you dispute any charges you must let Womply know within thirty (30) days after the date that Womply invoices you. Without limiting the limited refund right set forth below under Free Trials and Other Promotions, all amounts paid are non-refundable and we reserve the right to change our prices in the future. If we increase our prices for your Service plan, we will provide notice of the change on our website and in email to you at least 30 days before the change is to take effect. Your continued use of the Service after the price change goes into effect constitutes your agreement to pay the changed amount. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all costs associated with Womply’s efforts to collect past-due fees as well as all taxes associated with Services other than U.S. taxes based on Womply’s net income. Failed payments including Automated Clearing House (“ACH”) rejections or insufficient funds rejections will be subject to a returned payment fee of $25 per attempt.
- Payment Methods. The terms of your payment will be based on your Payment Methods and may be determined by agreements between you and the financial institution, credit card issuer or other provider of a Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. You may cancel your ACH draft by calling 855-929-9111. You may cancel a Payment Method by calling the phone number above; provided however, it may take up to forty-five (45) days for such a cancellation to take effect because of your Payment Processor policies and procedures. Womply reserves the right to, and you hereby authorize Womply to, deduct from your Womply Account payment balance or any other available funding sources in order to satisfy amounts due on your Billing Account.
- Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, PLEASE CONTACT US AT THE NUMBER ABOVE.
- Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US IF ANY OF YOUR PAYMENT METHODS ARE CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT BY CONTACTING US AT THE PHONE NUMBER ABOVE. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Methods. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- Auto-Renewal for Paid Services. Unless you opt out of auto-renewal by calling us at the phone number above or by contacting your service provider that signed you up for the Services, your Paid Services will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any please contact Womply using the phone number above. If you terminate a Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE BY CALLING US AT THE NUMBER ABOVE OR TERMINATE YOUR WOMPLY ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, WOMPLY WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
- Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.
- Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at email@example.com. If you have not received a free trial (or any other free access) to the Services, Womply will refund you the pre-paid subscription fees for your initial purchase of any paid subscription to the Services if, and only if, Womply receives a written request for such a refund within thirty (30) days of the commencement of, the earlier of, such subscription via an email to: firstname.lastname@example.org. If you request such a refund, your paid subscription to the Services may cease immediately without further notice including, without limitation, access to portions or features of the Services that require a paid subscription and any User Data or Content contained in the Services may be irretrievably deleted or removed without further notice. Please note that the foregoing refund does not include any separate fees or taxes that you may have been included in your purchase. For clarity, if you have previously received a free trial to the Services, You are not entitled to (and Womply will not provide) any such refund.
What about Womply Bills?
Details about and additional terms for Womply Bills can be found here. If you enable a Third-Party Account for a payments processor, you expressly authorize that payments processor, to originate credit transfers to your financial institution account. You further authorize Womply to collect, and share with each such payments processor, certain personal information including full name, email address and financial information, and you are responsible for the accuracy and completeness of that data.
How long are these Terms effective?
These Terms shall commence upon your acceptance hereof, and shall remain in full force and effect until the Terms are terminated in accordance herewith. Unless otherwise agreed to by you and Womply, the duration of these Terms will be one year (the “Subscription Period”). For businesses, an agreement to a different Subscription Period (e.g. a multi-year subscription) may be memorialized in an online order form. All Subscription Periods shall automatically renew for periods equal to the immediately preceding Subscription Period (on the same payment schedule) unless you provide notice to Womply of your intent not to renew no later than fifteen days prior to the end of your then-current Subscription Period (the date of such renewal, the “Renewal Date”).
For clarity, without limiting the limited refund set forth above, you are obligated to pay all fees for the entire Subscription Period regardless of the payment period agreed upon by you and Womply. Womply may, but is not obligated, to provide you with notice of an approaching Renewal Date. Womply may terminate this Agreement at any time for any reason or no reason. Womply may suspend your access to the Services at any time and without notice, if Womply believes in its sole discretion that you have breached any of the terms of this Agreement. Womply has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Upon termination of this Agreement, your right to use the Service will immediately cease.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at email@example.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What about Mobile Applications?
You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
I use the Womply App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including our iOS applications (the “Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the Application:
- Both you and Womply acknowledge that the Terms are concluded between you and Womply only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that Womply, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third-party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Womply, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Womply acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Womply acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
Can I refer other users?
From time to time Womply may offer rewards or incentives for referring others to the Services. For details of any current referral offers and related terms and conditions, please see our Referral Terms.
What about Womply Offers?
Womply may offer you the opportunity to promote certain card-linked offers (“Card-Linked Offers”) to your in-store customers through Womply’s relationship with third-party partners. If you opt to participate in these promotions, these Womply Offers Terms apply to you.
What else do I need to know?
Representations; Warranties. You represent and warrant that: (i) the products and services that are made available to your customers shall comply with all applicable laws in any jurisdiction in or to which you are making products and services available, and that you have all necessary licenses and permits in place to engage in the advertising and provision of its products and services; (ii) you are not currently subject to an order, litigation, or investigation by any federal, state, or local or international regulatory or law enforcement organization, and agree to notify Womply immediately in writing of any such order, litigation, or investigation arising out of or relating to your activities in connection with these Terms; and (iii) any and all information submitted by or on behalf of you in connection with the Services will be complete and accurate in all respects, and that Womply shall have the right to use such information for the purposes described in or contemplated by these Terms.
Disclaimers. Womply and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Womply and all such parties together, the “Womply Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Womply Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Womply Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. WOMPLY SHALL NOT BE RESPONSIBLE FOR ANY DELAYS OR FAILURES IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. THE SERVICES AND CONTENT ARE PROVIDED BY WOMPLY (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WOMPLY IS NOT INVOLVED IN ANY TRANSACTIONS BETWEEN YOU AND ANY PROCESSOR OR ANY USER SUPPLIER OR OTHER THIRD PARTY. AS A RESULT, WOMPLY HAS NO CONTROL OVER THE TRUTH OR ACCURACY OF ANY STATEMENTS MADE BY ANY SUCH THIRD PARTY TO YOU, OR THE TIMELY PERFORMANCE OF SUCH THIRD PARTY’S OBLIGATIONS TO YOU. ACCORDINGLY, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE THIRD PARTIES, YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD WOMPLY (AND WOMPLY’S SUPPLIERS AND LICENSORS) HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE WOMPLY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO WOMPLY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Womply Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Womply’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Open Source Software. The Services may rely on use of certain independent code that is licensed under open source licenses (“Open Source Code”) and such Open Source Code is licensed to you in accordance with the applicable open source licenses. To the extent that any of the terms and conditions in these Terms of Service conflict with any such open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Womply and limits the manner in which you can seek relief from Womply. Both you and Womply acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Womply’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Wilmington, Delaware. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Womply will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Womply will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Womply may assert claims, if they qualify, in small claims court in San Francisco, California or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND WOMPLY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Womply are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Womply over whether to vacate or enforce an arbitration award, YOU AND WOMPLY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Womply is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 548 Market Street, #73871, San Francisco, CA 94104 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Womply to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Womply agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, San Francisco, California, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Womply.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Womply may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Womply agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Womply, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Womply, and you do not have any authority of any kind to bind Womply in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Womply agree there are no third-party beneficiaries intended under these Terms.