Terms of Service | Whimzy.io

Acceptance of Terms

These Terms of Service ("Terms") govern your access to and use of the whimzy.io website and platform (the "Platform"), which is operated by Whimzy LLC ("Whimzy," "the Company," "we," or "us"). Whimzy LLC is a company organized in the United States with its principal registered address at:

Whimzy LLC
222 Glenwood Ave, APT 409
Raleigh, NC 27603-1495
United States

For all official communications, support inquiries, and mailing correspondence, please use our designated office mailing address:

Whimzy LLC (Attn: THookz)
355 South Grand Avenue, Suite 2450 PMB #2259
Los Angeles, CA 90071-3180
United States

We actively monitor this mailing address and will promptly receive and act on all urgent communications. Any disputes, formal complaints, or unresolved support issues should be sent in writing to this address. A Whimzy LLC Member will handle such matters confidentially and in accordance with our privacy commitments. Legal representation is available as needed to facilitate equitable resolution.

By accessing or using the Platform in any manner, you ("User" or "you") acknowledge that you have read, understood, and agree to be legally bound by these Terms. If you do not agree to these Terms, you must not use the Platform.

If you use the Platform on behalf of an organization or entity, you represent that you have the authority to accept these Terms on its behalf, and all references to "you" in these Terms include that organization. The Platform is not intended for and may not be used by anyone under the age of 13. By using the Platform, you represent that you are at least 13 years old (and if you are under 18, that you have your parent or legal guardian's permission to use the Platform) and that you are otherwise legally able to enter into this agreement.

We may update or modify these Terms from time to time at our discretion. If we make material changes, we will provide notice by updating the "Effective Date" above or by other appropriate means. Your continued use of the Platform after any such changes are posted constitutes your acceptance of the revised Terms. It is your responsibility to review these Terms periodically for updates.

Acceptable Use and User Conduct

You agree to use whimzy.io in a responsible manner and only for lawful purposes, in compliance with these Terms and all applicable laws and regulations. You shall not (and shall not permit any third party to):

Use the Platform in any way that violates any applicable federal, state, local, or international law or regulation;
Post, upload, or transmit any content that is unlawful, fraudulent, defamatory, libelous, harassing, abusive, obscene, pornographic, vulgar, offensive, incites violence, or otherwise objectionable (including content that promotes hate or discrimination against any group);
Infringe upon or violate the intellectual property rights or other rights of any person or entity (including but not limited to patents, trademarks, trade secrets, copyrights, privacy, or publicity rights) through your use of the Platform;
Attempt to gain unauthorized access to any portion or feature of the Platform, any other systems or networks connected to the Platform, or any server used by the Company, by hacking, password "mining," or any other illegitimate means;
Introduce any viruses, trojan horses, worms, logic bombs, or other malware or code that is malicious or technologically harmful, or otherwise use the Platform in a manner that could damage, disable, overburden, or impair the Platform's functionality or the equipment of any user;
Misrepresent your identity or affiliation with any person or entity, or impersonate any other person or entity, or attempt to deceive or defraud others as to the origin of any communication or content;
Use any robot, spider, scraper, crawler, or other automated means to access or extract data or content from the Platform without our express written permission, or attempt to circumvent any content filtering techniques we may employ;
Attempt to probe, scan, or test the vulnerability of the Platform or any related system or network, or breach any security or authentication measures;
Attempt to bypass or circumvent any measures we use to prevent or restrict access to the Platform or certain functionalities, including attempting to access or download Platform content or AI-generated outputs in bulk or via automated means not provided by us; or
Use the Platform or any content obtained from it to develop, directly or indirectly, any service or product that competes with the Platform or replicates any of its functionalities (such as using the Platform's outputs to train another AI model, without our permission).

We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Violation of the foregoing acceptable use provisions may result in the immediate suspension or termination of your rights to use the Platform, at our sole discretion, and may also subject you to legal consequences. Whimzy LLC also reserves the right (but has no obligation) to monitor your use of the Platform and any content you post or provide, and to remove or disable access to any content for any or no reason, including if we, in our sole discretion, determine that it violates these Terms or any applicable law.

Third-Party Services and Integrations

The Platform may integrate with or rely on third-party services, software, or application programming interfaces ("Third-Party Services") to provide certain features or functionality. This includes, for example, integrations with large language model providers and cloud platforms (such as OpenAI, Google Cloud, or Anthropic), storage and productivity services (such as Dropbox or Notion), and other external tools or APIs. You acknowledge that the availability and quality of the Platform's features may depend on these Third-Party Services, and that Third-Party Services are not under our control.

By using the Platform, you agree that your use of any features powered by or accessing Third-Party Services is subject to the terms and conditions of those third parties. For example, if the Platform uses an API provided by OpenAI or Google, your usage of functionalities leveraging those APIs may be subject to OpenAI's or Google's terms of service and privacy policies, and you agree to comply with such third-party terms as applicable. We are not responsible for the acts or omissions of Third-Party Services, nor for any information or content provided by them. We do not guarantee the continued availability of any particular Third-Party Service integration and may replace or discontinue integrations without entitling you to any refund, credit, or other compensation.

We may add, modify, or remove integrations with Third-Party Services at any time in order to adapt to new technologies, comply with third-party requirements, or improve the user experience. This forward-looking approach is intended to provide perpetual forward-compatibility, meaning that these Terms will continue to apply to any new or modified integrations that the Platform supports in the future. We will endeavor to notify users of significant changes to Third-Party Service integrations (for instance, if a core functionality will switch providers), but any failure to do so will not waive or reduce your obligation to comply with any updated integration requirements. You agree that Whimzy LLC shall not be liable for any damage or loss arising from the unavailability, modification, or removal of any Third-Party Service or from any Third-Party Service's acts, omissions, or terms.

Payment Terms

Certain features or services provided through the Platform may require payment, such as subscription plans, usage fees, or one-time purchases. By electing to use a paid feature, you agree to the pricing and payment terms presented to you for that service. All fees are due in accordance with the terms and price listed for the service or subscription you select.

Accepted Payment Methods: We accept a variety of payment methods, including:

Credit/Debit Cards: Major credit cards and debit cards (such as Visa, MasterCard, American Express, or Discover) may be used for payment.
Cryptocurrency Payments: Selected cryptocurrencies may be accepted via supported digital wallets or payment processors. For example, we may support payments through Coinbase Wallet, WalletConnect, or similar decentralized finance (DeFi) tools. Availability of specific cryptocurrency options may vary over time.
Other Payment Methods: We may accept other payment methods (including mobile payment services or bank transfers) as indicated on the Platform. We reserve the right to modify the accepted payment methods at any time.

When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will promptly update your payment information if it changes. You authorize Whimzy LLC (or its designated payment processor) to charge your provided payment method for all fees incurred under your account, including all applicable taxes and any transaction fees or charges described.

Transaction Fees and Risks: You are responsible for any fees or charges that may be imposed by your chosen payment provider (for example, credit card transaction fees or cryptocurrency network fees). If you choose to pay with cryptocurrency, you acknowledge that cryptocurrency values can be volatile and that transactions on blockchain networks are typically irreversible. It is your responsibility to ensure that you send any cryptocurrency payments to the exact address and network specified by us. Whimzy LLC is not liable for any losses or errors in payment resulting from incorrect wallet addresses, network issues, or other issues on the blockchain or with third-party wallet providers. Likewise, any delays in processing due to blockchain confirmations or third-party payment processors are beyond our control.

All payments are non-refundable except as explicitly provided in a refund policy on the Platform or as required by law. Once a service term (e.g., a subscription period) has started or a digital product has been delivered, you will not be entitled to a refund for that period or product unless otherwise stated. We reserve the right to issue refunds or credits at our sole discretion in exceptional cases; however, the provision of a refund in one instance does not entitle you to a refund in the future for similar instances.

We further reserve the right to change our fees or payment terms at any time. If the pricing of your chosen service or subscription changes, we will endeavor to provide advance notice to you (for example, by email or by posting an update on the Platform). Your continued use of the paid service after the new fees have taken effect constitutes your agreement to pay the updated amount. If you do not agree to a pricing change, you may cancel your subscription or cease using the paid feature before the change takes effect.

If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. This may include charging other payment methods on file (if any), and/or suspending or terminating your access to the paid features of the Platform. You may also be responsible for any costs of collection (including reasonable attorneys' fees) incurred by us in our efforts to collect any unpaid amounts.

Data Privacy and Analytics

Your use of the Platform is subject to our data and privacy practices. Please review Whimzy LLC's Privacy Policy for details on how we collect, use, store, and disclose information from our users. The Privacy Policy is incorporated by reference into these Terms. By using the Platform, you agree that Whimzy may collect and use your information in accordance with the Privacy Policy and these Terms.

Analytics and Usage Data: We may collect information about your usage of the Platform for analytics purposes. This information can include, for example, logs of user actions, feature usage statistics, device and browser information, cookie and similar tracking data, and other aggregate or technical data. We use this information to maintain and improve the Platform's performance, to develop new features, and to enhance your user experience. We may use third-party analytics providers or tools to help us analyze this data, but any such providers will be bound to process data in a manner consistent with our Privacy Policy. We will not publicly disclose analytics information in a way that could reasonably identify you personally, except as permitted in our Privacy Policy.

User Input and Sensitive Data: The Platform may allow you to input, upload, or store various types of content, which could include personal information or other sensitive data (for example, documents, notes, or prompts that you provide for analysis). While we take reasonable measures to safeguard the data that you provide (including employing encryption and security protocols appropriate to the data's sensitivity), no system is completely secure. You should be cautious about submitting any highly sensitive personal information (such as Social Security numbers, financial account credentials, health information, or other confidential data) unless it is necessary for the functionality you wish to use. If you choose to input or upload any sensitive information, you do so at your own risk, and you agree that Whimzy LLC is not responsible for any consequences of your decision to share such information.

By using the Platform, you acknowledge and agree that certain personal information and content you provide may be used by Whimzy to provide the service and improve the Platform. For example, data you input may be temporarily stored or processed by our algorithms (or sent to integrated Third-Party Services) to generate responses or results for you. We may also use aggregated or de-identified data derived from your usage for improving our services and training our models. We value your privacy and will handle your data in accordance with our Privacy Policy and applicable law, but we rely on you to only share information that you are comfortable being used in these ways. If you have any questions about how your data is handled, please consult our Privacy Policy or contact us for more information.

Intellectual Property and Content Ownership

Ownership of the Platform and Trademarks

Whimzy LLC (and its licensors, where applicable) retain all rights, title, and interest in and to the Platform, including all software, code, algorithms, models, interfaces, text, graphics, logos, design elements, compilations, and other content or materials available on or through the Platform (excluding User Content as defined below). This includes all intellectual property rights such as copyrights, trade secrets, patents, and trademarks in the Platform. The name "Whimzy," the Whimzy logo, and any other Whimzy LLC product or service names or slogans are trademarks or registered trademarks of Whimzy LLC (with the "Whimzy" name and logo being registered under U.S. trademark Class 35(a)). You are not granted any right or license to use any of Whimzy's trademarks, logos, domain names, or other brand features without our prior written consent. You agree not to remove, obscure, or alter any proprietary notices (including copyright and trademark notices) that may be affixed to or contained within the Platform.

User Content

The Platform may allow you to create, submit, upload, or transmit content such as text, data, documents, images, audio, video, code, or other materials ("User Content"). You retain ownership of any intellectual property rights that you hold in your User Content. However, by uploading or submitting User Content to the Platform, you grant Whimzy LLC a worldwide, royalty-free, fully paid-up, non-exclusive, transferable, and sublicensable license to use, host, store, reproduce, modify, adapt, translate, reformat, display, distribute, and create derivative works from your User Content solely for the purposes of operating, providing, and improving the Platform and our services, and as otherwise necessary to fulfill your requests. This means, for example, we may process your input through our AI tools, display the results to you, backup your data on our servers, or use your feedback to refine our algorithms. We will not use your User Content for any purpose wholly unrelated to the Platform without your permission, and we do not claim ownership of your User Content.

You represent and warrant that you have all necessary rights and permissions to submit your User Content to the Platform and to grant the license above. You further represent that neither your User Content nor Whimzy's use of your User Content as permitted by these Terms will infringe, misappropriate, or violate any third party's intellectual property rights, privacy rights, publicity rights, or other legal rights, or any law or regulation. You are solely responsible for your User Content and for the consequences of posting or providing it. Whimzy LLC is not responsible for any public display or misuse of your User Content by you or others. We reserve the right to remove or disable any User Content for any reason, including if we believe, in our sole judgment, that it violates these Terms or applicable law, or that it may expose us or our users to harm or liability.

Nothing in these Terms shall be construed to limit your rights to use your own User Content. Subject to the rights granted to us above, you retain any and all rights which may exist in the User Content you post or submit on the Platform, and you remain free to use your User Content in any way outside the Platform at your sole discretion.

AI-Generated Content and Usage Restrictions

As part of providing services, the Platform may generate content, output, or results based on your inputs or interactions. This may include, for example, text-based answers or completions, summaries, analyses, images, audio, code snippets, design suggestions, or other creative material produced by the Platform's artificial intelligence or other automated systems ("AI-Generated Content"). Whimzy LLC (and/or its licensors) retains all rights, title, and interest in and to all AI-Generated Content and any other content or materials provided to you through the Platform (collectively, "Platform Content"). Platform Content is protected by applicable intellectual property laws and international treaties.

Whimzy LLC grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Platform Content (including AI-Generated Content) within the Platform for your personal or internal business purposes, and strictly in accordance with these Terms. This limited license allows you to view or listen to AI-Generated Content, or use it as intended through the Platform interface. However, notwithstanding any provision to the contrary in these Terms, you are not permitted to download, copy, save, use, reproduce, distribute, publish, license, sell, or create derivative works from any AI-Generated Content or other Platform Content outside of the Platform without the express prior written permission of Whimzy LLC. In other words, you may not take the content generated by whimzy.io and use it for other purposes (such as posting it on other platforms, incorporating it into your own products or publications, or redistributing it to third parties) unless you have obtained explicit permission from us to do so.

This restriction on external use of Platform Content is a fundamental condition of these Terms. It applies notwithstanding anything else in these Terms and survives termination of your use of the Platform. For example, you are prohibited from using AI-Generated Content to train another AI model, from mass-exporting responses for use in a competing service, or from publishing Platform-generated images or text as part of any public-facing content or commercial product, unless expressly authorized by Whimzy LLC. Additionally, you must not remove or obscure any markings or notices (if any) that identify content as having been generated by the Platform. Any attempt to circumvent technical restrictions or to obtain Platform Content in a bulk or automated fashion (except via any official export features we may provide) is strictly prohibited.

You acknowledge and agree that all Platform Content is made available to you as a convenience for use within the Platform and remains the intellectual property of Whimzy LLC (or its licensors). Except for the limited license granted above, you have no ownership rights or rights to use the Platform Content. If you wish to use any Platform Content outside the scope of these Terms, you must obtain written permission from Whimzy LLC. Unauthorized use of Platform Content is considered a material breach of these Terms and may also violate our intellectual property rights or those of third parties.

If you provide us with any feedback, suggestions, or ideas regarding the Platform or any Platform Content ("Feedback"), you agree that such Feedback is not confidential and that we are free to use it without restriction or compensation to you. To the extent the ownership of such Feedback does not automatically vest in Whimzy LLC, you hereby grant us a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free license to use and incorporate your Feedback into the Platform or our business operations. You also agree that you will not assert any claim against us or our users based on any Feedback you provide.

Disclaimer of Warranties

Your use of the Platform and any content obtained through the Platform is at your sole risk. The Platform (including all its content, features, and services) is provided on an "AS IS" and "AS AVAILABLE" basis, without warranties of any kind, either express or implied. To the fullest extent permitted by applicable law, Whimzy LLC, on behalf of itself and its affiliates, licensors, and service providers, expressly disclaims any and all warranties, whether express, implied, or statutory, including but not limited to implied warranties of title, merchantability, fitness for a particular purpose, non-infringement, and any warranties arising from course of dealing or course of performance.

Without limiting the generality of the foregoing, Whimzy LLC makes no warranty or guarantee that the Platform will meet your requirements or expectations, that it will always be available, accessible, uninterrupted, timely, secure, or operate without error, or that the information, content, or results obtained through the Platform will be accurate, complete, or reliable. Whimzy LLC does not warrant the quality or functionality of any Third-Party Services integrated into the Platform, nor does it warrant that any defects or errors in the Platform will be corrected.

No advice or information, whether oral or written, obtained by you from us (including through any AI-Generated Content or support services) shall create any warranty that is not expressly stated in these Terms. We do not guarantee that any data or content you provide will not be subject to inadvertent damage, corruption, or loss. You are responsible for maintaining backup copies of your data.

Some jurisdictions do not allow the exclusion of certain warranties, so some of the above disclaimers may not apply to you. In such cases, any implied warranties are limited to the minimum scope and duration permitted by applicable law.

Limitation of Liability

To the maximum extent permitted by law, in no event will Whimzy LLC or its parent company (if any), owners, members, managers, directors, officers, employees, contractors, affiliates, subsidiaries (including any non-profit organizations, funds, or trusts affiliated with Whimzy LLC), agents, representatives, suppliers, or partners (collectively, the "Whimzy Parties") be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for any loss of profits, loss of data, loss of goodwill, business interruption, or other intangible losses, arising out of or related to your access to or use of (or inability to access or use) the Platform, any content on the Platform (including User Content or AI-Generated Content), or these Terms, whether based on warranty, contract, tort (including negligence), strict liability, or any other legal theory, even if Whimzy LLC has been advised of the possibility of such damages.

In particular, you expressly acknowledge and agree that the Whimzy Parties shall not be liable for any damages of any kind (whether material or immaterial, direct or indirect) arising from or relating to your use of the Platform or from any Platform Content or User Content. This limitation includes any damages or injury caused by any use of the Platform, any errors, omissions, interruptions, defects, delays in operation or transmission, computer viruses, connection failures, or unauthorized access to or alteration of data.

To the extent that any jurisdiction does not allow the exclusion or limitation of certain damages, our liability in those jurisdictions will be limited to the extent permitted by law. In no event shall the total liability of the Whimzy Parties for all claims arising out of or relating to these Terms or your use of the Platform exceed the greater of: (a) the total amounts you paid to Whimzy LLC for the specific service or subscription at issue in the twelve (12) months immediately preceding the event giving rise to the liability; or (b) US $100. The existence of more than one claim or incident will not enlarge this limit. You agree that the limitations of liability and waivers of remedy in these Terms are a fair allocation of risk and an essential part of the bargain between you and Whimzy LLC, and that they will apply even if a remedy fails of its essential purpose.

Indemnification

You agree to indemnify, defend, and hold harmless Whimzy LLC and the other Whimzy Parties (as defined above) from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees and court costs) arising out of or relating to: (a) your violation of these Terms or any policies referenced herein; (b) your use or misuse of the Platform, any User Content, or any Platform Content (including AI-Generated Content); (c) your violation of any law or regulation, or of any rights of a third party (including any intellectual property right, confidentiality, property, or privacy right); or (d) any dispute or issue between you and any third party.

Whimzy LLC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without relieving you of your indemnification obligations). If we do assume the defense of such a matter, you will reasonably cooperate with Whimzy LLC in that defense. This indemnification obligation will survive any termination of your account or the Platform or your use of the Platform.

Termination

These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by ceasing all use of the Platform and, if applicable, by closing your user account. We may terminate or suspend your access to the Platform (or any part thereof, including any user account) at any time, for any reason, and without prior notice, including if we believe that you have violated these Terms, if we are no longer providing the Platform or particular services, or if we believe it is necessary to protect our interests or the interests of other users or third parties.

Upon any termination of your access to the Platform or these Terms for any reason: (i) all rights and licenses granted to you under these Terms will immediately terminate; (ii) you must immediately cease all use of the Platform and any Platform Content; and (iii) you will remain liable for any amounts owed to us as of the date of termination. Termination will not affect any rights or liabilities that have accrued prior to termination or any terms which by their nature should survive termination (including, without limitation, provisions governing intellectual property ownership, content usage restrictions, disclaimers, limitation of liability, indemnification, and dispute resolution).

We also reserve the right to modify or discontinue, temporarily or permanently, the Platform or any features or portions thereof without liability and without notice. If you have prepaid for services that are discontinued, we may provide a pro-rata refund for the unused portion of your subscription at our discretion or as required by law.

Governing Law and Dispute Resolution

These Terms and any dispute, claim, or controversy arising out of or relating to these Terms or your use of the Platform ("Dispute") shall be governed by and construed in accordance with the laws of the State of North Carolina, USA, without regard to its conflict of law principles. Notwithstanding the foregoing, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern the interpretation and enforcement of the arbitration agreement in this section.

Informal Resolution

Before initiating any formal dispute resolution proceeding, you agree to contact us at Whimzy LLC (using the contact information provided on the Platform or in these Terms) and provide a brief, written description of the Dispute and your contact information (including your username, if applicable). Both you and we agree to use good faith efforts to resolve the Dispute informally. If we do not reach an informal resolution within 30 days after the Dispute notice is received, you or Whimzy may proceed to seek resolution through arbitration as outlined below.

Binding Arbitration

Agreement to Arbitrate: Except for the exceptions described below, you and Whimzy LLC agree that all Disputes (including any claims arising out of or relating to your use of the Platform, any content on the Platform, or these Terms, and including disputes arising out of or relating to the interpretation or validity of this arbitration provision, and the arbitrability of any Dispute) shall be resolved by binding arbitration on an individual basis, rather than in court. You and Whimzy LLC expressly waive any right to a jury trial or to participate in a class action in court or in arbitration.

Arbitration Procedure: The arbitration shall be administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules and, if you are an individual using the Platform for personal or household use, the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this agreement. The AAA Rules and filing forms are available online at www.adr.org or by contacting the AAA. The seat or legal place of arbitration shall be Raleigh, North Carolina, unless otherwise agreed by the parties or required by the AAA Rules. The arbitration will be conducted in the English language. A single, neutral arbitrator shall be appointed in accordance with the AAA Rules. The arbitrator will have the authority to grant any remedy that would otherwise be available in court, including the power to determine arbitrability and to grant motions dispositive of all or part of any claim. The arbitrator's award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Individual Capacity Only – Class Action Waiver: You and Whimzy LLC agree that each of us may bring claims against the other only in our individual capacities, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any class or collective arbitration, nor to issue any award that applies to any person or entity except you and Whimzy individually. If this specific paragraph is held unenforceable, then the entirety of this "Governing Law and Dispute Resolution" section shall be deemed void.

Exceptions to Arbitration: Notwithstanding the foregoing arbitration agreement, either party may choose to pursue a Dispute in court and not by arbitration if: (a) the Dispute qualifies for resolution in a small claims court of competent jurisdiction; or (b) the Dispute relates to a claim for injunctive or other equitable relief seeking to prevent actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. In addition, nothing in this agreement shall prevent either party from seeking emergency equitable relief in any court of competent jurisdiction to prevent imminent harm (e.g., a cyberattack, data breach, or other security incident).

Arbitration Costs: Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. If you are an individual consumer and you bring a claim subject to the AAA's Consumer Arbitration Rules, any filing fee contributions or cost-sharing required from you will not exceed the amount set by the AAA's Consumer Rules (and Whimzy LLC will pay the remainder of the fees as required by those Rules). In addition, Whimzy LLC will reimburse your portion of the arbitration filing fees in Disputes where your claims are for less than $10,000, unless the arbitrator determines your claims are frivolous or brought in bad faith. Each party shall bear the expense of its own attorneys' fees, except as the arbitrator may award attorneys' fees and costs to the prevailing party if permitted by law.

30-Day Right to Opt Out: You have the right to opt out of the binding arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to Whimzy LLC (Attn: THookz) 355 South Grand Avenue, Suite 2450 PMB #2259 Los Angeles, CA 90071-3180, USA (For: Legal/Arbitration Opt-Out) or via email at support@whimzy.io within 30 days after first accepting these Terms. Your notice must include your name, address, the email address associated with your account (if any), and an unequivocal statement that you wish to opt out of arbitration. If you opt out of this arbitration agreement, you will not be bound by the arbitration or class-action waiver provisions, but all other Terms will continue to apply. Opting out of this arbitration agreement will not affect any other agreements between you and Whimzy.

If either you or Whimzy LLC initiates a lawsuit in court despite this arbitration agreement, the other party can demand to proceed in arbitration under this agreement.

Governing Courts for Non-Arbitrable Claims

In the event that the arbitration agreement above is found not to apply to you or to a particular Dispute (except for the part of the arbitration clause that is unenforceable as stated in the Class Action Waiver paragraph above), either because you opted out or a court of competent jurisdiction so determines, you and Whimzy agree that any such Dispute will be resolved exclusively in the state or federal courts located in Wake County, North Carolina, USA. Both you and Whimzy consent to venue and personal jurisdiction in such courts, and you waive any objections or defenses based on inconvenient forum or jurisdiction.

Regardless of whether a Dispute is resolved in arbitration or in court, you and Whimzy LLC agree that under no circumstances will either party be liable for any indirect, consequential, exemplary, or punitive damages.

Miscellaneous

Entire Agreement: These Terms (together with any additional terms, policies, or guidelines incorporated by reference, including our Privacy Policy) constitute the entire agreement between you and Whimzy LLC with respect to the subject matter hereof, and supersede any prior or contemporaneous understandings, agreements, representations, or communications, whether written or oral, regarding the same subject matter. Neither party is relying on any statement or representation not expressly stated in these Terms.

Severability: If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permissible to effect the intent of the parties, and the remaining provisions of these Terms will remain in full force and effect. If such provision cannot be modified to be enforceable, then that provision will be deemed severed from these Terms, and all other provisions will remain in effect.

Waiver: No failure or delay by Whimzy LLC in exercising any right, power, or remedy under these Terms shall operate as a waiver of that or any other right, power, or remedy. Similarly, any single or partial exercise of a right, power, or remedy by us does not preclude further exercise of that or any other right, power, or remedy. Any waiver granted by Whimzy LLC must be in writing signed by an authorized representative of Whimzy LLC, and shall apply only to the specific instance expressly stated.

Assignment: You may not assign, delegate, or transfer these Terms or any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Whimzy LLC. Any attempt by you to transfer or assign these Terms without consent will be null and void. Whimzy LLC may assign or transfer these Terms or any of its rights or obligations under them at any time, in whole or in part, without notice or your consent. These Terms will bind and inure to the benefit of each party's permitted successors and assigns.

No Third-Party Beneficiaries: These Terms are for the sole benefit of you and Whimzy LLC (and Whimzy's successors and assigns). Except as otherwise expressly provided in these Terms, no third party shall be deemed to have any rights or remedies as a third-party beneficiary of these Terms.

All provisions of these Terms that by their nature should survive termination of these Terms or the termination of your use of the Platform shall survive (including, but not limited to, provisions regarding intellectual property, content usage restrictions, payments, warranty disclaimers, limitations of liability, indemnification, dispute resolution, and general provisions).