Thwoosh

Thwoosh Website Terms of Use

These Terms of Use were last updated and are effective as of January 1, 2020.

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE. ALL USERS OF THIS WEBSITE AGREE THAT ACCESS TO AND USE OF THIS WEBSITE IS SUBJECT TO THESE TERMS OF USE AND OTHER APPLICABLE LAW. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE THE WEBSITE OR THE SERVICES. PLEASE NOTE THAT SECTION 18 OF THESE TERMS OF USE CONTAINS A CLASS ACTION WAIVER, WHICH AFFECT YOUR RIGHTS CONCERNING DISPUTES WITH US AND WHICH YOU SHOULD READ.

Thwoosh Inc. (the “Company”, “we”, “us”, or “our”) provides this Website, and related pages and content (as applicable, the “Website”) for its customers and other permitted users. We’ve worked hard to give you the essential information here and elsewhere on our Website to get you comfortable with our Website and to make it useful to you. These Terms of Use (the “Terms of Use”) help enable us to provide you with the services, information, other content and features available through our Website, and shall govern your use and activity on this Website.

1. SCOPE OF ACCESS TO WEBSITE AND RELATED RIGHTS

Subject to these Terms of Use, the Company grants you a limited, revocable right to access and use the Website solely for your own use. The Website enables service providers (each a “Service Provider”) that operate various types of service establishments to interact with consumer patrons concerning orders, services and related matters and to manage related data. Each Service Provider utilizing the communications, data and other tools available through the Website is also subject to the separately provided subscription and payment terms and conditions applicable to such use of the Website and other parts of the Thwoosh platform.

You agree not to modify, adapt, translate, or reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of this Website. Further, you may not reproduce all or any portion of the Website. This Website and its contents are the intellectual property of, and are owned by, the Company. The Company reserves the right at any time to suspend or terminate use of this Website or its functionality and tools by you or other users in the Company’s sole discretion.

2. USER ACCOUNT AND SUBACCOUNTS

To access certain functionality, services and information made available through this Website that requires a user account, you will be required to establish a user account, which will be accessible upon input of an authorized e-mail address, password and other required information that is requested from you at either log in or initial user account registration.

For your user account, you are responsible for maintaining the security of any user passwords and other access credentials for use with such account and this Website, and you are also responsible for the integrity and security of the operating environment from which you and any of your personnel access the Website. As a Service Provider, you are also authorized to permit your personnel to use of the Website through subaccounts assigned by you to such personnel. Each subaccount must only be assigned for use by one individual and subaccounts may not be shared. You are responsible for ensuring that your personnel who are assigned use of subaccounts maintain the security of any user passwords and other access credentials for use with such subaccounts, as well as ensuring that your personnel who are assigned subaccounts only use such subaccounts for legitimate business purposes on behalf of the Service Provider and in a manner that is consistent with these Terms of Use.

If you believe your user account or any subaccount has been improperly accessed, used or compromised, you must notify us immediately at support@thwoosh.com. Please include "[GEN]" in your subject line our system may not mark your email appropriately.

We are not responsible for any loss that may result from the unauthorized use of your user account, any subaccounts or any account or subaccount passwords or other access credentials. Because of this, you agree to hold us harmless for any losses incurred by us as a result of you not using reasonable safeguards to protect account and subaccount passwords or other account access credentials.

3. PAYMENTS

Use of the Service Provider functionality portions of the Website requires each Service Provider customer to agree to additional contractual terms, including as to payment for use of such Website functionality. If you are a Service Provider that is using such functionality, you agree to make timely and full payment for use of such functionality in accordance with such additional contractual terms.

4. CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS

Certain features of the Website may require you to allow e-mails, text messages or other electronics communications to be received by you, and to use these features you must provide a valid e-mail address, mobile phone number or other applicable contact information. By registering such information on the applicable parts of the Website you authorize us to send you electronic communications in accordance with the settings specified with your account. You should be aware that your carrier may charge you applicable text messaging rates for each message sent or received. You represent to us that you are the owner or authorized user of the wireless or other communications device used to receive or send any text messages or other electronic communications related to your use of the Website

5. SUSPENSION OF WEBSITE OR APP USE DUE TO INAPPROPRIATE USE

We do not assume any responsibility for communications made or materials posted to or created by users accessing the Website or the related mobile app (the “App”) that is made available to consumer patrons, and we are not in any manner responsible for the content of any such communications or materials. You acknowledge that by providing you with the ability to receive and distribute communications and materials through the Website, we are merely acting as a passive conduit for such activities by you and your consumer patrons and, as a result, we do not undertake any obligation or liability relating to any such communications or materials. However, we prohibit use of the Website or the App to transmit or post any communications or materials that: (a) are abusive, offensive, libelous, defamatory, obscene or threatening, (b) are fraudulent, deceptive, misleading or illegal or that encourages a criminal offense, (c) violate a copyright, trademark or other intellectual property right of another person or entity, (d) is invasive of any personal privacy rights or other rights of another person or entity, or (e) is in the nature of mass unsolicited communications or “spam”.

While we do not prescreen communications and materials made through the Website or App, if we become aware of any communications or materials that violate any of the above prohibitions, we reserve the right to block or remove any such communications or materials as well as the right to temporarily or permanently block, suspend or ban any users of the Website or App that engage in any such activities.

The functionality available to a Service Provider allows you as a Service Provider (as well as users of subaccounts authorized by you) to temporarily block, suspend or ban a consumer patron user of the App that engages in any of the above prohibited activities or for other business reasons that you reasonably deem appropriate from using the App in a specific establishment of yours for the period of such block, suspension or ban.

6. COPYRIGHT ANTI-INFRINGEMENT POLICY

In addition to the other provisions in these Terms of Use concerning prohibited content, it is our policy (i) to block access to or remove postings or other content that we believe in good faith infringes the copyrights of third parties, and (ii) to remove and discontinue Website or App use to repeat infringers. If you believe that content posted on this Website infringes your copyright, please send to us a notice of claimed copyright infringement, with the relevant details, in the manner set forth in Section 17 below so that we address such matter.

7. TERMINATION OF WEBSITE USE

Unless you are a Service Provider that has paid for a subscription to the Website functionality (in which case the subscription terms shall govern termination matters covered by such subscription), the Company may terminate your access to this Website at any time. In addition, your access rights to use this Website may also be terminated if you fail to comply with these Terms of Use. You agree that the Company will not be liable to you or any third party for any termination of your use of this Website, whether as a result of your failure to comply with these Terms of Use or otherwise. If your use of our Website is terminated for any reason, the provisions of Sections 3 through 19 shall survive any such termination.

8. WEBSITE WARRANTIES AND DISCLAIMERS

THIS WEBSITE AND ITS CONTENTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND (EXCEPT WHERE SPECIFICALLY AND AFFIRMATIVELY NOTED OTHERWISE ON THIS WEBSITE), WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE WEBSITE, OR THE USE THEREOF, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THIS WEBSITE OR THE SERVER THAT MAKES THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE INFORMATION ACCESSIBLE THROUGH THIS WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. WE PROVIDE NO WARRANTIES FOR SERVICES NOT PROVIDED BY US. SOME STATES DO NOT PERMIT CERTAIN LIMITATIONS OR EXCLUSIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

9. LIMITATIONS OF LIABILITY

THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOST PROFITS, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE THIS WEBSITE OR ANY SERVICES OR INFORMATION MADE AVAILABLE THROUGH THIS WEBSITE, OR THE PERFORMANCE OR USE OF THIS WEBSITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS OF EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

10. ONLINE PRIVACY POLICY

We are diligent about protecting your privacy and that of other users of this Website and the use of this Website is subject to our Privacy Policy, which you may review by clicking here.

11. CHILDREN’S PRIVACY AND WEBSITE AGE LIMITATIONS

This Website is intended for use by persons aged 13 or older, and by your use of this Website you affirm that you are at least 13 years of age. The Company will not knowingly allow registration of an account for any person that the Company believes to be younger than 13. We also do not collect any personally identifiable information from any persons under the age of 13 and if we discover that we have been provided any such information, we will delete this information from our records.

12. COPYRIGHT

The entire contents included in this Website, including but not limited to text, graphics or code is copyrighted under the United States and other copyright laws, and is the property of the Company (or its licensors), with ALL RIGHTS RESERVED. You agree not to change or delete any proprietary notices from materials downloaded or accessed from this Website.

13. TRADEMARKS

All trademarks, service marks and trade names and logos of the Company used in this Website are trademarks or registered trademarks of the Company. Other marks used on this Website that have been posted by the Company are the property of their respective owners and are used on this Website under permission.

14. APPLICABILITY OF TERMS AND CHANGES

These Terms of Use are applicable to you upon your accessing the Website and/or completing the registration process. These Terms of Use, or any part of them, may be modified by the Company without notice at any time, for any reason; provided that if we decide to modify these Terms of Use, we will note at the top of these Terms of Use the date of the last update, which should alert you to changes in these Terms of Use since your prior visit to this Website.

15. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless the Company, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from (i) any violation by you or your personnel of these Terms of Use, (ii) any activity related to your account or any of your assigned subaccounts (including negligent or wrongful conduct) by you or any other person accessing the Website using your user account or any of your assigned subaccounts, (iii) any communications, content or other materials provided or posted by you or your personnel, or (iv) the violation by you or your personnel of the rights (including intellectual property rights) of any third party resulting from your or your personnel’s use of the Website.

16. THIRD PARTY SITES, APPS AND LINKS

In an attempt to provide increased value to our Website users, the Website may link to, or contain links for, third party websites and applications or promotions offered by third parties, none of which we control or maintain. These may include websites linked to products or promotions referenced elsewhere on our Website or in advertisements on the Website. We are not responsible for the terms and conditions or privacy practices employed by any such third parties or their websites or other applications accessible from our Website, and therefore you access them at your own risk. We encourage you to read the privacy statements of all third party websites and applications before submitting any personally identifiable information while using such other websites and applications. Nonetheless, the Company seeks to protect the integrity of its Website and any links posted on it and, therefore, we welcome any feedback on not only this Website, but also as to websites or applications that this Website links to (including if a specific link does not work).

17. NOTICES

The Company may at its option deliver notices to you concerning your user account or use of the functionality, tools and services on this Website by means of email, a general notice on the Website, or by other reliable method to the address or other communications details you have provided to the Company.

Unless specified elsewhere in these Terms of Use for specific types of notices or communications, for notices to be provided to the Company, its email address is as follows: legal@thwoosh.com.

18. GOVERNING LAW; DISPUTES; CLASS ACTION WAIVER

Your use of this Website shall be governed in all respects by the laws of the State of Delaware, without regard to such state’s choice of law provisions. Any cause of action or claim you may have with respect to the Website must be commenced within one (1) year after the claim or cause of action arises. The language in these Terms of Use, the Privacy Policy and other terms and policies provided for elsewhere on this Website shall be construed as to its fair meaning and not strictly for or against any party. You and we submit to the jurisdiction of the courts in the State of Delaware with respect to matters arising under these Terms of Use.

Class Action Waiver. You and we also agree that any legal proceeding shall be conducted in an individual capacity only and not as a class action or other representative action, and each of you and we expressly waive the right to file a class action or seek relief on a class basis.

19. MISCELLANEOUS

The Company's failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor any trade practices shall act to modify any of these Terms of Use. The Company may assign its rights and duties under these Terms of Use to any party at any time without notice to you.

If you have any complaint about use of the Website, you may contact us by email at legal@thwoosh.com. In accordance with California Civil Code Section 1789.3, California residents may also file complaints with the Complaint Assistance Unit, Division of Consumer Services, California Department of Consumer Affairs by postal mail at 1625 North Market Road, Suite N112, Sacramento, CA 95834 or by telephone at 800-952-5210.