TERMS OF SERVICE
Last revised on 07/16/2016
Welcome to WholeSplit.com. WholeSplit, LLC and/or its affiliates ("WholeSplit") provide website features and other products and services to you when you visit or shop at WholeSplit.com, use WholeSplit products or services, use WholeSplit applications for mobile, or use software provided by WholeSplit in connection with any of the foregoing (collectively, "WholeSplit Services" or the 'Service' as defined in Section 1). WholeSplit provides the WholeSplit Services subject to the following conditions.
We hope you will have a terrific experience using our service. Please review these Terms of Service thoroughly before commencing use of our Service.
These Terms constitute an electronic contract between you and WholeSplit. By accessing or using the Service, you indicate your unconditional acceptance of these Terms. Please review these Terms carefully, including the arbitration provision in Section 16, which describes how disputes will be resolved between us, and that no class actions may be brought under these Terms. We reserve the right, in our sole discretion, to update or revise these Terms of Service. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes, even if you choose not to review such changes.
1. Description of Services.
Subject to these and any other applicable Terms, WholeSplit allows its Members, as defined herein, to purchase items directly from manufacturers by aggregating Members' purchases, then placing orders on behalf of Members directly with manufacturers. Collectively, all of these services are referred to in these Terms as the 'Service' or 'Services'. You are responsible for obtaining access to the Service, and paying any third-party fees, such as Internet service provider or airtime charges, that may apply to obtain such access (including fees associated with conveying and displaying any advertising to you). In addition, you must provide and are responsible for all equipment necessary to access the Service.
2. Use of the Service.
(a) Limited License; Consent to Email Communications.
(b) Prohibited Uses.
Notwithstanding any other rights or restrictions in these Terms of Service, you may not use this Service to: (i) transmit via or through the Service any information, data, text, images, files, links, or software except in connection with your authorized use of this Service or otherwise in response to specific requests for information by us; (ii) introduce to the Service or any other computer or web site viruses, worms, Trojan horses and/or any kind of harmful code; (iii) obtain unauthorized access to any computer system; (iv) impersonate any other person, including but not limited to, a registered user of this Service or an employee of WholeSplit; (v) invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity; (vi) misrepresent the identity of a user or use a false e-mail address; (vii) tamper with or obtain access to this Service or any component of this Service; (viii) conduct fraudulent activities; (ix) collect or harvest information regarding other users of the Service for any reason whatsoever, including, without limitation, for sending such users unsolicited commercial e-mail; (x) copy or publish any information, articles, or other content that appears on the Service without the written consent of WholeSplit; (xi) download or copy account information for the benefit of another vendor or any other third party; (xii) commit any action that imposes or may impose (in WholeSplit's sole discretion) an unreasonable or disproportionately large load on WholeSplit's infrastructure; (xiii) engage in any activity for personal commercial or (xiv) use data mining techniques, robots, or similar data gathering and extraction tools.
You may not bypass any measures used by WholeSplit to prevent or restrict access to the Service. Any unauthorized use by you shall terminate the permission or license granted to you by WholeSplit.
(c) Responsibility For Member Account.
You are responsible for maintaining the confidentiality of your account, including your username and password. You agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us in the event of any unauthorized use of your account or other breach of security. Because of this, we strongly advise that if you are logged in as a Member, you exit or 'log out' from your account at the end of each session.
3. Membership Eligibility.
(a) Requirements for Use and Membership.
Users of the Service may register a member profile in order to use the Service if they are 18 years or older, have properly registered with the Service for such purpose, and have not been previously suspended or removed by WholeSplit for any reason (each such registered use a 'Member'). If you are under 18, you may use the WholeSplit Services only with involvement of a parent or guardian registering as a Member. By becoming a Member you represent and warrant that you are of legal age and are authorized to use any payment method you present to WholeSplit. If you do not meet the above qualifications, or if your use of the Service or Membership is prohibited by the laws of the United States or any other applicable jurisdiction, you may not use the Service. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and meet the criteria listed above. WholeSplit reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
(b) Accuracy of Account.
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service's registration form and other forms on the Service or as otherwise provided by WholeSplit. If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or if WholeSplit has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, WholeSplit has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). WholeSplit reserves the right to refuse service, terminate accounts, or remove or edit content in its sole discretion.
(c) One Account Per User.
4. Service User-Submitted Content.
(a) Responsibility For and Treatment Of Content.
By accessing the Service, you acknowledge that you are solely responsible for your profile, messages, photos, videos, notes, text, information, opinions, ideas and any other content you post, upload, submit, publish, or display (hereinafter 'post') on or through the Service, or transmit to or share with other Service Users or Members (collectively, the 'Service User Content'). Any Service User Content that is posted will not be treated as confidential. WholeSplit has the right, but not the obligation, to monitor and decline, edit, or remove (without notice) all or any portion of any Service User Content for any reason or no reason. In particular, WholeSplit may remove any Service User Content that it believes, in its sole discretion, violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Service Users. If WholeSplit chooses at any time, in its sole discretion, to monitor Service User Content, it still has no responsibility for the Service User Content nor for the conduct of the Service User posting Service User Content or to edit or remove any Service User Content, except in compliance with these Terms below. WholeSplit reserves the right at any time in its sole discretion to block use from certain IP addresses in order to protect the integrity of the Service.
(b) Prohibited Content.
You agree not to use the Service to post Service User Content or transmit to any person anything containing (i) libelous or otherwise unlawful, abusive, sexually oriented, racially offensive, threatening, harassing, obscene or illegal material; (ii) advertisements of any kind; (iii) personal information (such as social security numbers, addresses, last names, phone numbers, email addresses, URLs, etc.); (iv) confidential information of WholeSplit, its subsidiaries, or affiliates; (v) any chain letters, pyramid schemes, spam, contests, or promotional material; (vi) messages that offer unauthorized downloads of any copyrighted or private information; (vii) material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity) and (viii) any information similar or related to the foregoing.
The following is a partial list of the kind of Content that is illegal or prohibited on the Service. WholeSplit reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending Content or communication from the Service and terminating the membership of such violators. It includes, but is not limited to, Content that:
' is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
' harasses or advocates harassment of another person;
' involves the transmission of 'junk mail', 'chain letters,' or unsolicited mass mailing or 'spamming';
' promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
' promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
' contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
' provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
' provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
' solicits passwords or personal identifying information for commercial or unlawful purposes from other users; and
' engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
(c) Legality and Accuracy of Content.
Your use of the Service, including but not limited to the Content you post on the Service, must be in accordance with any and all applicable laws and regulations.
You agree not to provide inaccurate, misleading or false information to WholeSplit or to any Service User. If information provided to WholeSplit, or another Service User, subsequently becomes inaccurate, misleading or false, you agree to promptly notify WholeSplit of such change.
(d) Advertising and Solicitation Prohibited.
You may not engage in advertising to, or solicitation of, other Service Users. This includes but is not limited to solicitation or advertising to buy or sell any products or services through the Service, or invitations to attend parties or other social functions or networking events for commercial purposes or any other purpose that, in WholeSplit's sole discretion, could be deemed competitive to WholeSplit's Services. You may not transmit any chain letters or junk email to other Service Users. Although WholeSplit cannot monitor the conduct of its Service Users outside of the Service, it is also a violation of these rules to use any information obtained from the Service in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Service User without their prior explicit consent. In order to protect our Service Users from such advertising or solicitation, we reserve the right to restrict communication between our Members and Service Users as we deem appropriate in our sole discretion.
If you breach the terms of this subsection and send or post unsolicited bulk email, 'spam' or any other unsolicited communications for commercial purposes or any other purpose that could be deemed competitive to WholeSplit's Services through the Services, you acknowledge that you will have caused substantial harm to WholeSplit, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay WholeSplit US$100.00 for each such unsolicited communication you send through the Services.
(e) Grant of License by You.
By posting Content to any public area of WholeSplit, you automatically grant, and you represent and warrant that you have the right to grant, to WholeSplit, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by WholeSplit will not infringe or violate the rights of any third party, and that any Content you provide will not include or attach anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in the foregoing paragraph.
UNDER NO CIRCUMSTANCE SHALL ANY DISCLOSURE OF ANY SITE USER CONTENT TO WHOLESPLIT BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING ANY SITE USER CONTENT TO OR THROUGH WHOLESPLIT, YOU REPRESENT AND WARRANT THAT ALL YOUR SITE USER CONTENT WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT, TRADEMARK, PRIVACY, OR OTHER PERSONAL OR PROPRIETARY RIGHTS. YOU REPRESENT AND WARRANT THAT NO SITE USER CONTENT WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE, OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLELY RESPONSIBLE FOR YOUR SITE USER CONTENT. YOU REPRESENT AND WARRANT TO WHOLESPLIT THAT WHOLESPLIT IS FREE TO USE THE SITE USER CONTENT, EITHER AS SUBMITTED OR AS EDITED BY WHOLESPLIT, AND IMPLEMENT ANY SUGGESTIONS CONTAINED THEREIN, IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY WHOLESPLIT, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY AND WITHOUT ANY COMPENSATION TO YOU.
5. WholeSplit Affiliates.
(a) The WholeSplit Affiliates.
From time to time, WholeSplit may enter into agreements with companies or parties in which WholeSplit and such companies or parties provide WholeSplit Members and Service Users products or services through the Service. Such persons and entities are referred to herein as 'WholeSplit Affiliates', and their liability is limited as described below. Service Users rely on content provided by WholeSplit Affiliates at their own risk, as described below.
(b) No Affiliation In Absence of Agreement.
Notwithstanding the foregoing paragraph, WholeSplit is not affiliated with websites or third parties that sell or advertise our services or provides services without a written agreement with us. WholeSplit reserves the right to void all service policies, return policies, and other policies for orders and WholeSplit products or services that were obtained through unauthorized parties. WholeSplit is not responsible for any representations by unauthorized parties.
6. Additional Terms and Conditions.
Additional terms and conditions may apply to specific portions of or products on the Service or your membership, which terms are made part of these Terms of Service by reference. You agree to abide by such other terms and conditions. If there is a conflict between these Terms of Service and the terms posted or emailed for, or applicable to, a specific portion of or products on the Service or your membership, the latter terms shall control with respect to your use of that portion of the Service, the products or your membership.
7. Accuracy of Content.
Excluding Service User Content, WholeSplit attempts to be as accurate as possible. However, WholeSplit does not warrant that product descriptions or other content of any WholeSplit Service is accurate, complete, reliable, current, or error-free. If a product offered by WholeSplit itself is not as described, your sole remedy is to return it in unused condition.
8. Proprietary Rights.
(a) WholeSplit's Proprietary Rights.
Excluding Service User Content, you acknowledge and agree that the content, software, materials and other components (including but not limited to our logos, graphics, videos, music, button icons, and page headers) available on the Service are the highly valuable property of WholeSplit and/or its affiliates, subsidiaries, or licensors and are protected by copyrights, trademarks, service marks, or other proprietary rights and laws. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any content or materials on the Service (including software and code), without the express written permission of WholeSplit.
(b) Proprietary Rights of Third Parties.
All trademarks not owned by WholeSplit that appear on the Service are the property of their respective owners. Use of the content and materials for any purpose not expressly permitted in these Terms of Service is prohibited. We are not liable for any infringement of copyrights, trademarks, trade dress or other proprietary or intellectual property rights arising out of content posted on or transmitted through the Service by Service Users or WholeSplit Affiliates.
9. Links to Third-Party Websites; No Implied Endorsements.
This Service may contain links to other websites on the Internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website. Reference to any website, products, services, providers or other information by name, link, trade name, trademark or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by WholeSplit.
10. Indemnification by You; No Third Party Beneficiaries.
By using this Service, you agree to indemnify, hold harmless, and defend WholeSplit, its subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, successors, agents, subsidiaries, partners, contractors, vendors, manufacturers, distributors, representatives, affiliates, and the WholeSplit Affiliates (collectively, the 'WholeSplit Indemnitees') from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim (including without limitation, claims made by third parties for infringement of intellectual property rights) by a third party that arises in connection with (i) your use or misuse of the Service; (ii) your reliance upon any content or other information on this Service for any purpose; (iii) a dispute with a Service User Member; (iv) your breach of the Terms of Service; (v) your violation of any law or the rights of a third party; or (vi) your Service User Content. You agree to cooperate as fully as reasonably required in the defense of any claim. WholeSplit reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you for which you will remain responsible for indemnifying and holding harmless the WholeSplit Indemnitees.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
(a) We Are Not Responsible for Content and Conduct of Others.
WholeSplit is not and shall not be at any time responsible or liable for any loss or damage of any kind, including personal injury or death, (whether in tort, contract, or strict liability) arising out of or related to any Service User Content or any other content appearing on this site, or to any act or omission by Service Users of the Service, by WholeSplit or by any third party or by any of the equipment or programming associated with or utilized by the Service. In particular, WholeSplit is not responsible for the conduct, whether online or offline, of any user of the Service including any Member of the Service. Any content submitted by our Service Users or WholeSplit Affiliates does not necessarily reflect the opinions or policies of WholeSplit.
(b) We Are Not Responsible for Technical Errors.
WholeSplit assumes no responsibility for any error, omission, interruption, delay, communications line failure, deletion, defect, delay in operation or transmission, theft or destruction or unauthorized access to, or alteration of, any Service User Content or other Service User communications. WholeSplit is not responsible for any problems or technical malfunction of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software, failure of any email or other functions due to technical problems or traffic congestion on the Internet or on the Service, including any injury or damage to Service User's or other person's computer related to or resulting from participation on or through the Service.
(c) We Provide the Service and Services As-Is; No Warranty.
THE SERVICE, ITS CONTENT AND ALL TEXT, IMAGES, MERCHANDISE AND OTHER INFORMATION ON, ACCESSIBLE FROM OR AVAILABLE THROUGH THE SERVICE ARE PROVIDED ON AN 'AS AVAILABLE' AND 'AS IS' BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WHOLESPLIT DOES NOT WARRANT THAT: (I) THE INFORMATION AVAILABLE ON THE SERVICE IS FREE OF ERRORS; (II) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS; (III) DEFECTS WILL BE CORRECTED, OR (IV) THE SERVICE OR THE SERVER(S) AND OTHER TECHNOLOGY THAT MAKES IT AVAILABLE WILL ALWAYS FUNCTION AS INTENDED OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12. Limitation of Liability.
By accessing or using this Service, you accept unconditionally the following general and specific limitations of liability:
(a) You rely on content and the Service at your own risk.
The Service provides a forum for information and content provided by affiliates, professionals and Service Users, but not directly by WholeSplit. WholeSplit does not (i) guarantee the accuracy, completeness, or usefulness of any information found on the Service, or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Service. Under no circumstances shall WholeSplit or its affiliates (including the WholeSplit Affiliates and their employers and employees) be responsible for any loss or damage resulting from your reliance on information or other content posted on the Service or transmitted to or by any Service Users or third parties. This includes any loss or damage resulting from your reliance on information provided by WholeSplit Affiliates in response to a question that you may have posed to one or more of the WholeSplit Affiliates.
(b) You interact with other Service Users at your own risk.
The Service also provides a forum for interacting with other Service Users. You are solely responsible for your interactions with other Service Users or other individuals you encounter on or through the Service, whether on the Service or in person. You understand that WholeSplit does not conduct criminal background checks on Service Users, nor do we otherwise inquire into the backgrounds of Service Users or attempt to verify the veracity of any statements made by its Service Users.
WholeSplit makes no representations or warranties regarding the conduct of any Service User. Notwithstanding the foregoing, WholeSplit reserves the right to use publicly-available records to conduct criminal background checks or otherwise screen Service Users at any time, using any legal means.
In no event shall WholeSplit be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other registered users of the Service or other persons you meet through the Service. You agree to take all reasonable precautions in all interactions with other Service Users, especially if you decide to meet offline or in person. You acknowledge that you should not provide any personal or financial information (for example, credit card or bank account information) to other Service Users.
You understand that WholeSplit makes no guarantees, either express or implied, regarding products sold through the Service.
IN NO EVENT SHALL WHOLESPLIT, ITS SUBSIDIARIES, DIVISIONS, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, OR SERVICES, OR ANY INFORMATION CONTAINED THEREON OR STORED OR MAINTAINED BY WHOLESPLIT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF WHOLESPLIT HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE TOTAL LIABILITY OF WHOLESPLIT, ITS SUBSIDIARIES, OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION OR SERVICES ON THIS SITE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS SITE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO WHOLESPLIT IN CONNECTION WITH THE APPLICABLE SERVICE, GOOD, OR OTHER OFFERING GIVING RISE TO SUCH LIABILITY, OR, IF YOU HAVE NOT PAID WHOLESPLIT FOR THE USE OF ANY SUCH SERVICES, GOODS, OR OTHER OFFERING, THE AMOUNT OF US$25.00 OR ITS EQUIVALENT.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL WHOLESPLIT, ITS SUBSIDIARIES OR AFFILIATES (INCLUDING THE WHOLESPLIT AFFILIATES) OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF WHOLESPLIT.
YOU HEREBY ACKNOWLEDGE THAT THIS SECTION 12 APPLIES TO ALL CONTENT, SERVICES, AND PRODUCTS AVAILABLE THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH STATES SOME OR ALL OF THE ABOVE DISCLAIMERS OR EXCLUSIONS MAY NOT APPLY AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13. International Use.
WholeSplit currently offers its Services only within the United States of America.
14. Term and Termination; Survival; Unavailability of Service.
(a) Term and Termination.
These Terms will remain in full force and effect from the first time that you access the Service and shall remain in effect in perpetuity. However, WholeSplit retains the right to modify these Terms at any time, at which point the modified Terms shall supersede the previous Terms and the modified Terms shall remain in effect until perpetuity. We may, in our sole discretion, terminate or suspend your use or access to all or part of the Service or your account or membership, for any reason, including without limitation, breach of these Terms of Service. You may terminate your membership at any time, for any reason, by following the instructions on the Service on how to terminate your membership, or you may provide us with written notice using the email or postal address listed at the bottom of these Terms. If at any time, we notify you that your access to and/or use of the Service or your account is terminated, you must cease and desist from all such access and/or use immediately.
In the event these Terms of Service or your membership or account are terminated (whether by you or by us, and whether for cause or without cause) the restrictions regarding intellectual property matters, the representations and warranties, indemnities, and limitations of liabilities set forth herein (as well as any other of your obligations which by their nature should survive termination) will survive termination.
(c) Unavailability of Service.
We may alter, suspend, or discontinue this Service in whole or in part, at any time and for any reason, without notice or cost. In addition, the Service may be temporarily unavailable from time to time for maintenance or other reasons. You agree that WholeSplit shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
15. Copyright; Trademark; DMCA Procedures.
All content included in or made available through any WholeSplit Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the property of WholeSplit or its content suppliers and protected by United States and international copyright laws. The compilation of all content included in or made available through any WholeSplit Service is the exclusive property of WholeSplit and protected by U.S. and international copyright laws.
In addition, graphics, logos, page headers, button icons, scripts, and service names included in or made available through any WholeSplit Service are trademarks or trade dress of WholeSplit in the U.S. and other countries. WholeSplit's trademarks and trade dress may not be used in connection with any product or service that is not WholeSplit's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits WholeSplit. All other trademarks not owned by WholeSplit that appear in any WholeSplit Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by WholeSplit.
The Digital Millennium Copyright Act of 1998 (the 'DMCA') provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on this Service infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the Service the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that 'under penalty of perjury' you are the lawful copyright owner or are authorized to act on the owner's behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send this Service a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov for further information. Our contact for copyright issues relating to this Service (including the notices and counter-notices) is: terms@WholeSplit.com . Please note that there are penalties for false claims under the DMCA.
16. Arbitration; Choice of Law and Forum.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
(a) Arbitration Agreement.
The exclusive means of resolving any dispute or claim arising out of or relating to these Terms (including any alleged breach thereof), the Service, or the Service shall be binding arbitration administered by the American Arbitration Association in the City of Austin, Travis County, Texas, United States of America. By using the Service, you acknowledge and agree that you may not, under any circumstances, commence or maintain against WholeSplit any class action, class arbitration, or other representative action or proceeding. You further acknowledge that but for the immediately preceding promise, WholeSplit would not offer Services to you nor engage in any business with you.
(b) Notice of Rights.
By using the Service or the Services in any way, you agree to the above arbitration agreement. In doing so, you give up your right to go to court to assert or defend any claims between you and WholeSplit. You also give up your right to participate in a class action or other class proceeding. Your rights will be determined by a neutral arbitrator, not a judge or jury. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Notwithstanding anything contained in these Terms of Service to the contrary, WholeSplit shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in order to enforce our rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. You consent to the jurisdiction of such courts and irrevocably waive any objection, including without limitation any objection to the laying of venue or objection based on the grounds of forum non conveniens, which you may now or hereafter have to the bringing of any such action or proceeding in such jurisdiction.
In addition, you expressly waive any right to a jury trial in any legal proceeding against WholeSplit, its subsidiaries, divisions, or affiliates or their respective officers, directors, employees, agents, or successors under or related to these Terms of Service. Any claim or cause of action you have with respect to use of the Service must be commenced within one (1) year after the claim arises.
(c) WholeSplit and you agree that you will resolve any disputes, claims or controversies on an individual basis, and that any disputes, claims, and controversies arising out of or relating to these Terms (such as with respect to their validity or enforceability) or the Service (for example, relating to any person's access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service), will be brought on an individual basis and in an individual capacity, and not on behalf of, or as part of, any purported class, or consolidated or representative proceeding. You further agree that you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to these Terms, including with respect to their validity or enforceability, or the Service.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in Travis County, Texas.
(d) Forum; Choice of Law.
For purposes of any actions or proceedings ancillary to arbitration, or in the event that a given controversy is held by a court of competent jurisdiction to be non-arbitrable, each of the parties hereto (i) irrevocably agrees that the state and federal courts located in Travis County, Texas shall have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (ii) submits to the venue and jurisdiction of such courts, and (iii) irrevocably consents to personal jurisdiction by such courts.
These Terms of Service and any dispute of any sort that might arise between you and WholeSplit or its subsidiaries, divisions, or affiliates shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles, as it is applied to agreements entered into and performed therein.
17. Risk of Loss
18. Returns, Refunds, and Title
WholeSplit does not take title to returned items until the item arrives at our fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, WholeSplit does not take title to the refunded item.[Office2]
With respect to items sold via WholeSplit, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by WholeSplit is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.
We generally do not charge your credit card until after your order has entered the shipping process or, for digital products, until we make the digital product available to you.
(a) Entire Agreement.
If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
The failure of WholeSplit to act with respect to a breach by you or others does not waive WholeSplit's right to act with respect to subsequent or similar breaches. WholeSplit's failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WholeSplit without restriction.
The section headings contained in these Terms of Service are included for convenience only and shall not limit or otherwise affect the terms of these Terms of Service.
In these Terms of Service, the terms 'we', 'us', 'our' and other similar references mean WholeSplit and WholeSplit.com. The terms 'you', 'your' and other similar references mean a specific Service User (both Members and non-Members) of the WholeSplit site.
19. When We Make Changes to These Terms.
WholeSplit may, at our sole discretion, alter these Terms from time to time to provide enhancements and updates. When we do so, we will provide notice of those changes within a reasonable amount of time to the e-mail address you provided when you signed up for our services, as well as on this page. Your continued use of WholeSplit following notice of any such revisions will constitute your acknowledgment and acceptance of the new terms, and your agreement to continue to be bound by these Terms of Service, as amended.
If you would like to receive a copy of these Terms in non-electronic format, please send a letter and a self-addressed stamped envelope to the address given below, or send a request to Terms@WholeSplit.com.
20. Contacting Us.
If you have any questions or concerns about these Terms of Service, or wish to report a violation of these Terms of Service, please contact us at Terms@WholeSplit.com or at:
[City, State, ZIP]
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