Please read these Terms of Service (the “Terms”) and our Privacy Policy (www.whal.co/legal) (“Privacy Policy”) carefully because they govern your use our mobile application (“App”) offered by Whal Inc. (“Whal,” “we,” “our,” or “us”).
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND WHAL THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms. By using our App, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the App.
2. Privacy Policy. Please review our Privacy Policy, which also governs your use of the App, for information on how we collect, use and share your information.
3. Changes to these Terms or the App. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the App and/or may send other communications (e.g., email). If you continue to use the App after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the App anymore. Because our App is evolving over time, we may change or discontinue all or any part of the App, including any features or functionality within it, at any time and without notice, at our sole discretion.
4. Who May Use the App? You may use the App only if you are 18 years or older and capable of forming a binding contract with Whal, and not otherwise barred from using the App under applicable law.
5. Our Intellectual Property. We may make available through the App content that is subject to intellectual property rights. We retain all rights, titles, and interests to that content.
6. Rights and Terms for Apps.
(a) App License. If you comply with these Terms, Whal grants to you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to download and install the App on your mobile handsets, tablets, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
(b) Additional Information: Apple App Store. This Section 6(b) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
7. General Prohibitions and Whal’s Enforcement Rights. You agree not to do any of the following:
(a) Use, display, mirror or frame the App or any individual element within the App, Whal’s name, any Whal trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Whal’s express written consent;
(b) Access, tamper with, or use non-public areas of the App, Whal’s computer systems, or the technical delivery systems of Whal’s providers;
(c) Attempt to probe, scan, or test the vulnerability of any Whal system or network, or breach any security or authentication measures;
(d) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Whal, or any of Whal’s providers or any other third party (including another user) to protect the App;
(e) Use the App, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(f) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the App;
(g) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the App;
(h) Collect or store any personally identifiable information from the App from other users of the App without their express permission;
(i) Impersonate or misrepresent your affiliation with any person or entity;
(j) Violate any applicable law or regulation; or
(k) Encourage or enable any other individual to do any of the foregoing.
Whal is not obligated to monitor access to or use of the App or to review or edit any content. However, we have the right to do so for the purpose of operating the App, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the App. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
8. No Investment Advice. The App, and all information and material contained or provided within it, are strictly for informational purposes only. You should not construe any such information or other material as legal, tax, investment, financial, or other advice. Neither the App, nor anything contained on the App, is intended to be or shall constitute a solicitation, recommendation, endorsement, or advice regarding any investments, securities, or other financial instruments.
9. SERVICES ACCOUNT AND MATERIALS; BROKERAGE ACCOUNT; TRANSACTIONS.
a. ServicesAccount. If you wish to register as a Member other than through a third-party login provider (e.g., Google),during the registration process we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”).We may also ask you to provide additional information that will assist in authenticating your identity when you log-in in the future (“UniqueIdentifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one user. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Whal Technologies, Inc. will not be liable for any loss or damage caused by any unauthorized use of your account.
b. BrokerageAccount. In order to use certain features of the Services, including authorizing Transactions (as defined below), Members must have an active account with a participatingThird-Party Broker/Exchange (a “Brokerage Account”). Your BrokerageAccount is subject to a separate agreement directly between you and the applicable Third-Party Broker. Under no circumstances will we have any liability for your Brokerage Account. You further acknowledge that we have no control over Third-Party Brokers/Exchanges and that you may be charged fees by the Third-Party Broker/Exchange. We are not responsible for any Third-PartyBroker/Exchange fees. You are solely responsible for your use of theThird-Party Brokers/Exchanges’ services, and you agree to comply with all terms and conditions applicable to such services as required by the applicableThird-Party.
c. Transactions. The Services allow Members to purchase and sell certain Investments through their Brokerage Account (each, a “Transaction”). To enable you to make Transactions through theServices, you will be required to link your Brokerage Account to the Services. Whal Technologies, Inc. processes Transaction requests according to the instructions it receives from its Members. By initiating a Transaction on the Services, you hereby authorize Whal Technologies, Inc. to communicate with the applicable Third-PartyBroker/Exchange on your behalf and to send a message of the Transaction through to your Brokerage Account. Acceptance and execution of any Transaction is in the sole control and discretion of your Third-Party Broker/Exchange. Once a Transaction has been completed, the Investments will be placed in (or removed from) your Brokerage Account, and will be reflected in your Services account.
Whal Technologies, Inc. does not collect any funds, execute any Transactions, or otherwise act as a broker-dealer or cryptocurrency exchange, money transmitter, money services business, bank account, brokerage account, or other financial account. Whal Technologies, Inc. merely communicates your purchase authorizations to Third-Party Broker/Exchange that complete the Transactions on your behalf. Although you may be able to find information about investment opportunities through the Services, we are not a party to any Transaction regarding any such opportunity. We strongly recommend that in connection with each Transaction, Members conduct their own due diligence. All messages sent using the Services are self-directed by you to your Third-Party Broker/Exchange . All orders are executed by Third-PartyBrokers/Exchanges where Members have an existing account, and Whal Technologies, Inc. is not responsible for the order routing or execution of any transaction. Any confirmations of such Transactions will be issued solely by the Member’sThird-Party Broker/Exchange. Members are solely responsible for any and all orders placed by them, and understand that all orders are unsolicited and based on their own investment decisions. WHAL TECHNOLOGIES, INC. AND ITS AFFILIATES, EMPLOYEES,AGENTS, PRINCIPALS, OR REPRESENTATIVES DO NOT PROVIDE RECOMMENDATIONS OF ANY TRANSACTION OR ORDER, PROVIDE INVESTMENT ADVICE, ENDORSE ANY INVESTMENTS,PRODUCE OR PROVIDE RESEARCH TO ANY USER REGARDING ANY INVESTMENT, TRANSACTION OR ORDER, OR EXECUTE ANY TRANSACTIONS.
10. Forward-Looking Statements. The App may contain forward-looking statements, including statements regarding trends in the financial industry, financial instruments, securities, plans, and strategies. Forward-looking statements often contain terminology such as ‘intend,’ ‘aim,’ ‘project,’ ‘anticipate,’ ‘estimate,’ ‘plan,’ ‘believe,’ ‘expect,’ ‘may,’ ‘should,’ ‘will,’ ‘continue,’ ‘annualized,’ or similar words. These statements discuss future expectations concerning the results of operations or financial condition, or provide other forward-looking statements. These forward-looking statements are not guarantees or predictions of future performance, and involve known and unknown risks, uncertainties and other factors, many of which are beyond our control, and which may cause actual results to differ materially from those expressed in the statements contained in this presentation. YOU ARE CAUTIONED NOT TO PUT UNDUE RELIANCE ON FORWARD-LOOKING STATEMENTS. Whal does not undertake any obligation to update or review any forward-looking statements, whether as a result of new information or future events, and WHAL HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR IN CONNECTION WITH ANY FORWARD-LOOKING STATEMENTS, INCLUDING YOUR RELIANCE THEREON.
11. Links to Third Party Websites or Resources. The App may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
12. Termination. We may suspend or terminate your access to and use of the App, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by contacting us at support@whal.co . Upon any termination, discontinuation or cancellation of the App or your account, the following Sections will survive: 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, and 17.
13. Warranty Disclaimers. THE APP IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the App will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the App.
14. Indemnity. You will indemnify and hold Whal and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the App, or (b) your violation of these Terms.
15. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER WHAL NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APP WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WHAL OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL WHAL’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE APP EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO WHAL FOR USE OF THE APP OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO WHAL, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WHAL AND YOU.
16. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Whal are not required to arbitrate will be the state and federal courts located in the County of San Mateo, and you and Whal each waive any objection to jurisdiction and venue in such courts.
17. Dispute Resolution
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Whal agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Whal are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 16(a) above: (i) you and Whal both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) you and Whal each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.Any arbitration hearings will take place in the county (or parish) where you live, unless you and Whal both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 16(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND WHAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 16(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
18. General Terms.
(a) Reservation of Rights. Whal and its licensors exclusively own all right, title, and interest in and to the App, including all associated intellectual property rights. You acknowledge that the App is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the App.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Whal and you regarding the App, and these Terms supersede and replace all prior oral or written understandings or agreements between Whal and you regarding the App. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Whal’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Whal may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(c) Notices. Any notices or other communications provided by Whal under these Terms will be given: (i) via email; or (ii) by posting to the App. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Whal’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Whal. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19. Contact Information. If you have any questions about these Terms or the App, please contact
Whal at support@whal.co, 825 Marshall st, #332 Redwood City CA, 94063.
