TERMS AND CONDITIONS OF USE
1. MEMBER ELIGIBILITY AND ACCOUNTS
Eligibility. By using the Site, You represent and warrant that: You are at least 18 years old; You are and will continue to be a United States citizen and/or a person legally authorized to work in the United States; You have the right, authority and capacity to enter into this Agreement; You will abide by all the terms and conditions of this Agreement; neither You, nor anyone in Your household (A) has been the subject of a complaint, restraining order or any other legal action, arrested for, charged with or convicted of any criminal offense.
2. MEMBER VERIFICATION
Member Verification by Members. You are responsible to make Your own decision regarding the other Members that You engage through the Site. Whimiy may make a third-party verification service available to Members. Members may use this service to verify information of other Members such as, but not limited to, name, address, and criminal background. Use of a third-party verification service is voluntary. If You decide to use or access information provided by a third-party verification service offered through the Site, You do hereby represent, understand and expressly agree that Whimiy is a conduit for the third-party verification service and does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information provided by the third-party verification service. In addition, You understand that Whimiy may review the information provided by the third-party verification service. If You use the third party verification service, and such verification is governed by the Fair Credit Reporting Act (the “FCRA”), You represent and warrant that You will comply with the FCRA, which can be found at http://www.ftc.gov/os/statutes/fcrajump.shtm. Whimiy expressly disclaims any and all liability that may result from the use of the information provided by the third party verification service. Whimiy expressly disclaims, and You expressly release Whimiy from, any and all liability whatsoever for any controversies, claims, suits, injuries and/or damages arising from and/or in any way related to (a) any misstatements and/or misrepresentations made by any Member or (b) THE ACCURACY, TIMELINESS OR COMPLETENESS OF ANY BACKGROUND CHECK provided to you in connection with the site or the services.
Optional Member Verification by Whimiy. You understand and agree that Whimiy has the right, but not the obligation, to independently verify any statement made by any Member on the Site or verify that any Member meets any of the eligibility criteria set forth above. In the event that Whimiy chooses to verify the representations and warranties or any information provided by You through Your use of the Site, You hereby authorize Whimiy, either directly or through our vendors or service providers, to attempt to verify such information, which verification may include, without limitation, conducting criminal background checks, motor vehicle records checks, identification verifications, credential verification checks, credit checks and/or using available public records. You consent to any collection, use or disclosure in order to accomplish such verification.
Whimiy is a Venue. The Site is a venue designed to connect Owners with Renters looking for items. Whimiy does not provide or arrange rental services. Whimiy does not participate in the interaction between Owners and Renters except to process payments on behalf of Owners and collect payments from Renters and/or Owners who use any of the Whimiy Premium Services (defined below). Any disputes related to the items received by Owners and/or Renters must be resolved directly between Owner and Renter. You understand and agree that Whimiy has no control over and is not responsible for the acts or omissions of any Members on or off the Site. You also understand and agree that Whimiy makes no representation or warranty regarding the quality of any services provided by any Member. Whimiy is not responsible for the accuracy or reliability of any information provided by any Member on the Site.
WHIMIY EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY RELEASE WHIMIY FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY DAMAGES, SUITS, CLAIMS AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE FROM AND/OR IN ANY WAY RELATE TO ANY ACTS OR OMISSIONS OF MEMBERS ON OR OFF THE SITE, INCLUDING WITHOUT LIMITATION THE PROVISION OF ANY CARE SERVICES BY ANY OWNER.
Rules Regarding Information and other Content. When You access the Site and/or Services, You obtain access to various kinds of information and materials, all of which we call “Content.” Content includes information and materials posted to the Site or through the Services by You and other Members. You are entirely responsible for each individual item of Content that You post, email or otherwise make available on the Site or the Services. As between You and us, You retain ownership and any intellectual property rights in any copyrighted materials that are contained in Content that You post to the Site or through the Services. You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, worldwide license, under any and all of Your copyright and other intellectual property rights related to that Content. You agree that any such Content or any derivative works thereof, may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our Visitors and Members. You agree not to revise Content posted by others, and You represent and warrant that You will not post or use any Content in any manner that: Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others; Violates the privacy, publicity, or other rights of third parties, including other Members; Violates any law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising; Is false or inaccurate or becomes false or inaccurate at any time; Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion; Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others; Misrepresents Your identity in any way; Contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; Contains any advertising or solicitation for anything other than rental services offered through the Site; Advocates or encourages any illegal activity; or
Has the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
Use the Site or Services to stalk, harass or harm another individual; Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts); Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services; Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission; and Whimiy reserves the right, in its sole discretion, to terminate Your use of the Site or assess a $10,000 daily penalty fee for violation of this provision; Impersonate any person or entity, or otherwise misrepresent Your affiliation with a person or entity; or Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
Whimiy follows an equal opportunity employment policy and employs personnel without regard to race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender expression, age, height, weight, disability status, veteran status, military obligations, and marital status.
Whimiy is committed to serving all members, regardless of race, ethnicity, sex, age, religion, national origin, mental or physical ability, sexual orientation, gender identity and expression, ancestry, military discharge status, marital status, source of income, housing status or other protected classification.
The Site and basic Services of Whimiy are free for Members. Owners pay Whimiy a 10% (ten percent) commission on total rented item revenue. Premium services, are, or may become, available for a fee. By using our Premium Services, Member agrees to pay Whimiy at the fees then in effect unless specifically notified otherwise. Whimiy reserves the right, at any time, to modify its fees and/or billing methods. In exchange for the Premium Services, Member authorizes Whimiy to deduct the then-current fee from all payments processed by Whimiy or a third party service provider on Owner’s behalf.
Premium Memberships may be automatically extended for successive renewal periods of the same duration as the membership originally selected (as indicated at the time of sign-up). IF YOU SIGN UP FOR A MEMBERSHIP THAT IS SUBJECT TO AUTOMATIC RENEWAL, YOU AGREE THAT THE TERM OF SUCH MEMBERSHIP OR FEATURE WILL BE AUTOMATICALLY RENEWED AT THE END OF EACH TERM UNLESS AND UNTIL YOU CANCEL PRIOR TO THE END OF THE CURRENT TERM BY CALLING WHIMIY AT 1-800-805-40963, BY EMAILING AT support@Whimiy.com, OR THROUGH YOUR ACCOUNT SETTINGS. Upon automatic renewal, you authorize Whimiy to charge your selected payment method the then current applicable fee in accordance with membership plan you selected. Upon cancellation, you will have access to the membership benefits until the end of the then-current membership term, and the membership will not be renewed after that term expires. You will not be eligible for a refund of any portion of the membership fees paid for the then-current membership period. Whimiy is not responsible for and will not reimburse any fees incurred by you from you bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges billed by Whimiy.
Owner’s funds will be scheduled to be automatically deposited into Owner’s bank account according to the bank details provided by Owner, if the Rentor’s payment is made before 2:00pm Central Time. If the payment is made after 2:00pm Central Time then the funds will be scheduled to deposited into the Owner bank account on the following business day. The time it takes for the funds to show in the Owners bank account will be typically 2-4 business days, depending on their financial institution.
Renter’s credit card or bank will be automatically and instanteously charged upon renting and is considered Approved. Renter authorizes Whimiy to automatically charge their card for the amount due to their Owner and applicable Whimiy fees. Owner is solely responsible for the accuracy of his or her bank details, including Owner’s bank account number and bank routing number. Whimiy expressly disclaims all liability related to errors in fund deposits due to inaccurate or incomplete bank details submitted by Owner.
Whimiy is not responsible for and will not reimburse any fees incurred by Owner or Renter from their bank or other financial institution, including without limitation overdraft charges, insufficient funds charges, interest charges, or finance charges, which may have occurred as a result of charges billed by Whimiy.
Whimiy is not responsible for member Federal, State, or Local taxes. Per IRS requirements, Whimiy will distribute 1099s to those members earning $600 or more in rental income.
Whimiy reserves the right to correct any errors in the payment of Whimiy fees even if it has already requested and/or received payment. Owner will remain responsible for the Whimiy fee and any other applicable fees in connection with any refund or chargeback of a Renter’s payment.
Whimiy may use third party payment processing services to process credit card or bank information. Whimiy expressly disclaims any and all liability for any claims or damages related to Whimiy’s use of third party payment processing services, including without limitation any damage that may result should any such information be released to any third parties.
For purposes of clarity, the Premium Services provided by Whimiy to Members do not include any services related to submitting claims for reimbursement from any third party payer. In addition, no Owner may make any claim for reimbursement from any third party payer, including any private or governmental insurance provider, in connection with the services provided to any Renterer by such Owner.
5. PROHIBITED ITEMS
While you may rent almost any item on Whimiy, maintaining the safety of our community and its members is a responsibility we take very seriously. For this reason, and to comply with legal restrictions, some categories of rentals are restricted or completely banned from being listed.
Adult / Sexual Items. These items include, but are not limited to: Sexually explicit anime, comics, books, films, animation, manga, hentai, yaoi, and computer games; Sex toys and sex accessories such as vibrators, male masturbators, sex dolls, and bondage and fetish accessories; Unrated or Films and video games with a rating of X, XXX, R18 or created for an adults-only audience.
Drug Paraphernalia and Medical Items. These items include, but are not limited to, all those used or intended for the use in manufacturing, concealing, or using a controlled substance. It also includes medical devices including those that don’t require a prescription or supervision from a licensed practitioner.
Firearms, Weapons, and Knives. These items include, but are not limited to: airsoft, replica or other imitation firearms; military surplus, ordnance, grenades, and explosives; firearms and firearms parts and accessories; hand weapons; knives, and; BB guns, pellet guns, air rifles, or air pistols.
Government Documents, IDs, and Licenses. These items include, but are not limited to: syndicated reports; birth certificates or a completed applications for a birth certificate; Classified or restricted government documents; current vehicle license plates and plates that look like current license plates; documents that are designed to look like official documents but are actually fake; drivers’ licenses or completed applications for a driver’s license; Fake certificates or diplomas; fake IDs such as licenses or passports; government vehicle license plates; government-issued medals and certificates for medals, including the Air Force Cross, Congressional Medal of Honor, Distinguished Service Cross, Navy Cross, Purple Heart, or Silver Star. This also applies to a medal’s associated buttons, ribbons, or rosettes; iems that are used to create or modify IDs, government documents, licenses, or plates; passports or a completed application for a passport; Vehicle Identification Number (VIN) plates; VIN plate rivets,Vehicle titles or vehicle title stocks.
Lock-Picking Devices. These items include key cutting machines or other locksmithing equipment.
Personal or Contact Information. These items include mailing lists and website traffic-driving services.
Personal Relationships and Services. These items/services include those that are illegal, sexual in nature, or that violate our Terms. It also includes in-person or online relationships, personal advice and coaching, and other business or personal relationships.
Police and Law Enforcement. These items include, but are not limited to, badges or law enforcement equipment; identification; emergency vehicles, lighting and sirens; uniforms; and other items and devices.
Stolen Property. Renting stolen property is against the law and we will contact law enforcement if an attempt is made to list stolen property on our site. We will also support any investigation of members who violate this policy.
6. TEXT MESSAGES
Whimiy may send Members SMS text messages in connection with the Services or otherwise. Receipt of the SMS text messages from Whimiy is voluntary. By deciding to receive SMS text messages from Whimiy, You give Whimiy express permission to send SMS text messages to Your cellular phone and/or mobile device. Additionally, You do hereby represent, understand and expressly agree that Whimiy does not have control over or assume any responsibility for the quality, accuracy, or reliability of this Service. Carrier charges may apply for receiving SMS text messages. You are solely responsible for any costs You incur when receiving SMS text messages from Whimiy.
7. WHIMIY CHAT
Whimiy Members may use the Whimiy Chat Service designed to facilitate communication between Renters and Owners. The Whimiy Chat includes discussion Chats, document sharing, posting announcements, scheduling events and related Services. Your use of the Whimiy Chat is governed by this Agreement.
8. NO PROFESSIONAL ADVICE
All information, materials, content and/or advice on the Site or provided through the Services is for informational purposes only and is not intended to replace or substitute for any professional, financial, legal or other advice. Whimiy expressly disclaims, and You expressly release Whimiy from, any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Site. You should consult with an appropriately trained specialist for all concerns that require professional or legal advice.
9. PROMOTIONAL OFFERS
We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any time.
10. MODIFICATIONS TO THE SITE OR SERVICES
We reserve the right to modify or discontinue the Site or Services with or without notice to You. We will not be liable to You or any third party should we exercise our right to modify or discontinue the Site and/or Services. If You object to any such changes, Your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services following notice of any such changes will indicate Your acknowledgement of such changes and satisfaction with the Site or Services as so modified.
You agree that we, in our sole discretion, may immediately suspend or terminate Your access to the Site and Services at any time, for any reason, without notice or refund. YOU AGREE THAT WHIMIY LLC WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES OR DELETION OF YOUR ACCOUNT OR YOUR CONTENT. SUSPENSION OR TERMINATION OF YOUR ACCOUNT WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED THROUGH YOUR USE OF THE SITE OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO WHIMIY LLC OR A THIRD PARTY.
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION.
13. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST REAL ESTATE OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR SERVICE PROVIDERS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT OR SERVICE PROVIDER SITES OR ANY OTHER SITE LINKED TO OUR SITE. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY ACT OR OMISSION OF ANY MEMBER. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN THE AGGREGATE, TO FIFTY DOLLARS (U.S. $50.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to You. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
WE reserve the right, but have no obligation, to monitor, or take any APPROPRIATE action regarding, disputes that You may have with MEMBERS, service providers or other customers.
Without limiting the foregoing, under no circumstances WILL WE or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.
15. COPYRIGHT VIOLATIONS
We respect the intellectual property of others, and we ask You to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information: An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that You claim has been infringed; a description of where the material that You claim is infringing is located on the Site or Services; Your address, telephone number, and email address;
a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf. Our Copyright Agent for notice of claims of copyright infringement on the Site or Services can be reached by directing an e-mail to copyright@Whimiy.com.
16. NO THIRD PARTY BENEFICIARIES
You understand and agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
17. NO AFFILIATION
You acknowledge that You are not legally affiliated with Whimiy in any way, and no independent contractor, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by Your use of the Site or Services or by this Agreement. Whimiy is not an employment service or agency and does not secure employment for Members.
19. NOTICE: CONTACT INFORMATION
Last Revised: July 15, 2018
2018 © Whimiy LLC
Whimiy does not employ or recommend any Owner or Renter nor is it responsible for the conduct of any Owner or Renter. The Whimiy website is a venue that provides tools to help Renters and Owners connect online. Each individual is solely responsible for selecting a Owner or Renter and for complying with all laws in connection with any employment relationship they establish.