Whichit - Terms of service
Whichit (as defined below) provides digital marketing management and content services ("Services"), including through its web-based platform, mobile application and application program interface used by businesses to create and deliver interactive commercial content ("Whichit Platform" or “ICC Studio”) and its interactive commercial content distribution model ("Whichit Interactive Unit" or “ICC Units”).
These Terms of Service ("Terms"), together with any order form and/or customer agreement you have executed with Whichit prior to entering these Terms ("Customer Agreement") govern your access and use of the Services and Whichit Platform. In the case of any conflict between these Terms and the Customer Agreement, the provisions of such Customer Agreement shall prevail. Our Privacy Notice, available at https://whichit.co/privacy ("Privacy Notice") governs our collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Notice).
If you are located in the UK or the EU, the terms "Whichit", "us", "our", or "we" shall refer to Whichit Technologies Ltd. If you are located in the US, such terms shall refer to Whichit US, Inc. If you are located in Israel or any jurisdiction other than the US or UK or EU, such terms shall refer to Whichit Ltd., Israeli Company Number 51602167. "You" means an individual using the Services.
Please read these Terms carefully. By clicking on the button marked "I agree" you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not agree to any of these Terms, please do not click the button marked "I agree" and do not use the Services.
If you are registering on behalf of any entity or company ("Company"), you represent that you are authorized to enter into, and bind the Company to these Terms. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to you and the Company and the right to access the Whichit Platform and Services is revoked where these Terms or use of the Whichit Platform or Services is prohibited.
1. Use of Services
1.1. Subject to these Terms and the terms of the Customer Agreement, where applicable, Whichit allows you to access and use the Whichit Platform and Services on a non-exclusive basis. Whichit may, at its sole discretion and at any time, modify or discontinue providing the Services or any part thereof without notice and shall not be liable for any such modification or discontinuance.
1.2. Use of and access to the Services is void where prohibited by law. You hereby represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older, and have the ability to form a binding contract; (d) your use of the Services does not violate any applicable law, regulation, or obligation you may have to a third party; and (e) you shall comply with applicable laws, regulations, guidelines, these Terms and the Customer Agreement, if applicable, throughout your use of the Whichit Platform and/or Services.
2. Account Registration
2.1. In order to access the Whichit Platform and use the Services, you will need to have a registered "business user" account.
2.2. Whichit may refuse to open an account for any individual or entity at its sole discretion.
2.3. You agree to notify us immediately of any unauthorized use of your account or password. You are fully and solely responsible for the security of your computer system and/or mobile device and all activity on your account, even if such activities were not committed by you. To the fullest extent permitted by applicable law, Whichit will not be liable for any losses or damages arising from unauthorized use of your account or password, and you agree to indemnify and hold Whichit harmless for any unauthorized, improper or illegal use of your account and any charges and taxes incurred, unless you have notified us via e-mail at support@whichit.co that your account has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable. We do not police for and cannot guarantee that we will learn of or prevent, any inappropriate use of the Services.
3. Termination of Account
3.1. You agree that Whichit may, for any reason, at its sole discretion and without notice, suspend or terminate your account, and may remove any Content (as defined below) associated with your account and take any other corrective action it deems appropriate. Grounds for such termination or suspension may include (i) termination, suspension or expiration of the Customer Agreement for any reason; (ii) extended periods of inactivity, (iii) violation of the letter or spirit of these Terms, (iv) fraudulent, harassing or abusive behavior, or (v) behavior that is illegal or harmful to other users, third parties, or the business interests of Whichit. If your account is terminated, you may not rejoin Whichit again without express permission. Upon termination of your account, you shall not have any further access to any Content that may be available through your account.
3.2. We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behavior through the Services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, behavior or Content of anyone believed to have violated these Terms or to have engaged in illegal behavior in connection with the Services.
3.3. You may request termination of your Whichit account at any time and for any reason by sending an email to support@whichit.co. Following such request, Whichit shall close your account as soon as reasonably practicable. Any suspension or termination of your account shall not affect your obligations under these Terms (including but not limited to ownership, indemnification, any representations and warranties made by you, and limitation of liability), which by their sense and context are intended to survive such suspension or termination.
4. Content
4.1. Certain types of content may be made available through the Services. "Content" as used in these Terms means, collectively, all content on or made available through the Services, including any images, photos, pictures, styling guides, fonts, polls, quizzes, trivia, posts, interactive content, marketing materials, and reports, and any modifications or derivatives of the foregoing. Whichit allows you to upload and create certain content including but not limited to images and/or pictures on or through the Services, referred to herein as "User Content".
4.2. WHICHIT DOES NOT ENDORSE ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY USER CONTENT) OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE CONTENT AND/OR USER CONTENT. WHICHIT DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY AND ALL USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.
5. User Content Restrictions
5.1. Whichit has no obligation to accept, display, or maintain any User Content. Moreover, Whichit reserves the right to remove and permanently delete any User Content uploaded by you, without notice and for any reason. You are and shall remain at all times fully and solely responsible for any User Content that you upload to the Services. You represent and warrant that any User Content that you upload (i) complies with applicable law; (ii) does not infringe or violate any third-party intellectual property rights, privacy or publicity rights, or moral rights; and (iii) that you have all necessary rights and authorities to submit such User Content.
5.2. Without limiting the foregoing, you agree that you will not transmit, submit or upload any User Content or act in any way that: (1) restricts of inhibits use of the Services; (2) violates the legal rights of others, including defaming, abuse, stalking or threatening users; (3) infringes (or results in the infringement of) the intellectual property rights, moral rights, publicity, privacy, or other rights of any third party; (4) is (or you reasonably believe or should reasonably believe to be) stolen, illegal, counterfeit, fraudulent, pirated, violent or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe or should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (5) does not comply with all applicable laws, rules and regulations; (6) publishes falsehoods or misrepresentations that may damages us or any third party; (7) imposes an unreasonably or disproportionately large load on our infrastructure; or (8) posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (a) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity), (b) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening, (c) pornography or obscene material, (d) any virus, worm, trojan horse, or other harmful or disruptive component or (e) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive.
5.3. Whichit may, at its sole discretion, choose to monitor User Content for inappropriate or illegal behavior, including through automatic means, provided however, that Whichit reserves the right to treat User Content as content stored at the direction of users for which Whichit will not exercise editorial control except when violations are directly brought to Whichit's attention.
5.4. Content on the Whichit Platform comes from a variety of sources. You understand that Whichit is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to this Content (including but not limited to the User Content).
6. Use Restrictions
You may not do or attempt to do or facilitate a third party in doing any of the following: (1) decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Whichit Platform or Services without our prior written authorization, including framing or mirroring any part of the Whichit Platform or Services; (2) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content; (3) use the Whichit Platform or Services or Content thereon in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms; (4) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Whichit Platform or Services; (5) use or access another user’s account or password without permission; (6) use the Whichit Platform or Services or content thereon in any manner not permitted by these Terms.
7. Intellectual Property
7.1. Whichit or its licensors, as the case may be, have all right, title and interest in the Whichit Platform and Services, as well as in all modifications, enhancements, and updates thereto and all worldwide intellectual property rights, and the trademarks, service marks, logos and other Content contained therein. Except as expressly permitted herein or in the Customer Agreement, you may not copy, further develop, reproduce, republish, modify, alter, download, post, broadcast, transmit or otherwise use the Content of the Whichit Platform or Services for any purpose. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Whichit Platform and/or Services, if any. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms or on the Whichit Platform should be construed as granting you any right to use any trademark, service mark, logo, or trade name of Whichit or any third party. If you provide Whichit with any feedback regarding any Content on the Whichit Platform and/or Services, Whichit may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
7.2. You have all right, title and interest in the User Content you submit. By submitting or posting any User Content, you (i) grant Whichit and its successors and assignees a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license under any of your intellectual property, moral or privacy rights to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, alter, decompile, publicly perform such User Content on, through or in connection with the Whichit Platform and/or Services in any media formats and through any media channels.
8. Copyright
8.1. The policy of Whichit is not to infringe upon or violate the intellectual property rights or other rights of any third party, and Whichit will refuse to use and remove any User Content in connection with the Services that infringes the rights of any third party. Under the Digital Millennium Copyright Act of 1998 (the "DMCA"), Whichit will remove any Content (including, without limitation, any User Content) if properly notified that such material infringes third party rights, and may do so at its sole discretion, without prior notice to users at any time. The policy of Whichit is to terminate the accounts of repeat infringers in appropriate circumstances.
8.2. You are in the best position to judge whether User Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with User Content.
8.3. If you believe that something appearing on the Services infringes your copyright, you may send us a notice requesting that it be removed, or that access to it blocked. If you believe that such a notice has been wrongly filed against you, the DMCA allows you send us a counter-notice. Notices and counter-notices must meet the DMCA’s requirements. We suggest that you consult with your legal advisor before filing a notice or counter-notice. Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us by contacting us at support@whichit.co.
9. Disclaimers and Disclaimer of Warranty
9.1. All information and content posted on the Whichit Platform is for informational purposes only and Whichit provides no guarantees with respect thereto. Your use of the Whichit Platform and/or Services is at your sole discretion and risk. The Whichit Platform, Services, and Content are provided on an AS IS and AS AVAILABLE basis without warranties of any kind. We do not represent or warrant that Services will be of good quality or useful for your needs.
9.2. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE WHICHIT PLATFORM AND/OR SERVICES OR ANY CONTENT THEREON, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE WHICHIT PLATFORM AND/OR SERVICES; OR (II) THAT THE WHICHIT PLATFORM OR SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE WHICHIT PLATFORM AND/OR SERVICES.
9.3. No advice or information, whether oral or written, obtained by you from us, shall create any warranty that is not expressly stated in these Terms. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
9.4. You acknowledge and agree that Whichit is not a data retention service. You therefore must create backups of your data and Whichit shall have no responsibility or liability in respect of any loss of, damage to, or corruption of any such data.
10. Limitation of Liability
10.1. In addition to the foregoing, we assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Content or Services. We are not responsible for any problems or technical malfunction or failures of any telephone network or lines, computer online systems or equipment, servers or providers, software, failure due to technical problems or traffic congestion on the Internet or on the Services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death and any injury or damage to any person's mobile device or computer, resulting from use of the Whichit Platform, Services, from any Content, or from the conduct of any users of the Services, whether online or offline. In addition, we assume no responsibility for any incorrect data, including Personal Data provided by you or on your behalf and you hereby represent and warrant that you are solely responsible for any and all data provided to Whichit, including any incorrect data and you shall assume any and all liability for any consequences of provision of such incorrect data to us.
10.2. IN NO EVENT SHALL WHICHIT, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ASSIGNEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WHICHIT PLATFORM AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE INFORMATION PROVIDED AS PART OF OR THROUGH THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WHICHIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU EXCEED THE AMOUNT YOU AND/OR THE COMPANY HAVE PAID US IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OR CAUSE OF ACTION AROSE, IF APPLICABLE. IF YOU HAVE NOT MADE ANY PAYMENTS TO WHICHIT FOR THE USE OF THE SERVICES, THEN WHICHIT SHALL NOT HAVE ANY LIABILITY TOWARD YOU.
11. Indemnification
11.1. You agree to indemnify, defend, and hold harmless Whichit, its affiliates, and their respective employees, directors, officers, subcontractors and agents, against any and all claims, damages, or costs, losses, liabilities or expenses (including reasonable court costs and attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer and/or mobile device, password (whether authorized or unauthorized); (b) any claim, loss or damage experienced from your use or attempted use of (or inability to use) the Whichit Platform or Services; (c) your violation of any law or regulation or any of your obligations, representations, or warranties hereunder including but not limited to breach of any privacy and/or data protection laws and regulations to which you are subject; (d) your infringement of any right of any third party; and (e) any other matter for which you are responsible hereunder or under applicable law.
12. Miscellaneous
12.1. If you have contracted with Whichit Technologies Ltd., these Terms shall be governed by the laws of England and Wales and the competent courts in London, England shall have exclusive jurisdiction to hear any disputes arising hereunder. If you have contracted with Whichit US, Inc, these Terms shall be governed by the laws of the State of Delaware and the competent courts in the State of Delaware shall have exclusive jurisdiction to hear any disputes arising hereunder. If you have contracted with Whichit Ltd., these Terms shall be governed by the laws of the State of Israel and the competent courts in Tel Aviv – Yaffo, Israel shall have exclusive jurisdiction to hear any disputes arising hereunder. The choice of jurisdiction listed above shall be exclusive of choice of law rules in the applicable jurisdiction and without regard to the United Nations Convention on the International Sales of Goods. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action against Whichit must be brought within one (1) year of the date such cause of action arose. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and Whichit or enables you to act on behalf of Whichit. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us and you relating thereto are hereby canceled. We may assign and/or transfer our rights and obligations hereunder to any third party without prior notice. You shall not assign and/or transfer any of your rights or obligations hereunder, and any assignment in violation of the foregoing shall be void. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If we are required to provide notice to you hereunder, we may provide such notice to the contact details associated with your account.
Last updated: November 2019