These terms are binding on any use of the service and apply to you from the time that Whip Around provides you with access to the service.
By registering to use the service you acknowledge that you have read and understood these terms and have the authority to act on behalf of any person for whom you are using the service. You are deemed to have agreed to these terms on behalf of any entity for whom you use the service.
These terms were last updated on October 12, 2023.
Means the monthly fee (excluding any taxes and duties) payable by you in accordance with the fee schedule set out on the website (which Whip Around may change from time to time on notice to you).
Includes all information exchanged between the parties to this agreement, whether in writing, electronically or orally, including the service but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
Means any data inputted by you or with your authority into the website.
“Intellectual property right”
Means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Means the fleet inspection software services made available (as may be changed or updated from time to time by Whip Around) via the website.
Means the internet site at the domain www.Whip-around.Com or any other site operated by Whip Around.
Means Whip Around limited which and all current and future global subsidiaries of Whip Around limited including, without limitation Whip Around (nz) limited (new zealand), Whip Around, inc. (united states), Whip Around (au) limited (australia), and Whip Around (uk) limited (united kingdom).
Means any person or entity, other than the subscriber, that uses the service with the authorisation of the subscriber from time to time.
Means the person who registers to use the service, and, where the context permits, includes any entity on whose behalf that person registers to use the service.
Means the subscriber, and where the context permits, an invited user. “Your” has a corresponding meaning.
Whip Around grants you the right to access and use the service via the website and mobile apps with the particular user roles available to you according to your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this agreement. You acknowledge and agree that, subject to any applicable written agreement between the subscriber and the invited users, or any other applicable laws:
An invoice for the access fee will be issued each month starting one month from the date you added your first organization to your Whip Around account. All invoices will include the access fee for the preceding period one month of use. Whip Around will continue invoicing you monthly until this agreement is terminated in accordance with clause 8.
All Whip Around invoices will be sent to you, or to a billing contact whose details are provided by you, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 10 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the access fee.
You may from time to time be offered preferential pricing or discounts for the access fees as a result of the number of vehicles that you have added to the service or that have been added with your authority or as a result of your use of the service (‘organizations’). Eligibility for such preferential pricing or discounts is conditional upon your acceptance of responsibility for payment of any access fees in relation to all of your vehicles. Without prejudice to any other rights that Whip Around may have under these terms or at law, Whip Around reserves the right to render invoices for the full (non-discounted) access fees due or suspend or terminate your use of the service in respect of any or all of your organizations in the event that any invoices for those access fees are not paid in full by the due date for payment.
You must only use the service and website for your own lawful internal business purposes, in accordance with these terms and any notice sent by Whip Around or condition posted on the website. You may use the service and website on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorized to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this agreement that apply to you.
Ii. Not use, or misuse, the services in any way which may impair the functionality of the services or website, or other systems used to deliver the services or impair the ability of any other user to use the services or website;
Iii. Not attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the services are hosted;
Iv. Not transmit, or input into the website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use); and
Use of the service may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls you are permitted to make against Whip Around’s application programming interface. Any such limitations will be advised.
You indemnify Whip Around against: all claims, costs, damage and loss arising from your breach of any of these terms or any obligation you may have to Whip Around, including (but not limited to) any costs relating to the recovery of any access fees that are due but have not been paid by you.
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
Ii. Is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
Iii. Is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
Iv. Is independently developed without access to the confidential information.
Title to, and all intellectual property rights in the services, the website and any documentation relating to the services remain the property of Whip Around (or its licensors).
Title to, and all intellectual property rights in, the data remain your property. However, your access to the data is contingent on full payment of the Whip Around access fee when due. You grant Whip Around a license to use, copy, transmit, store, and back-up your information and data for the purposes of enabling you to access and use the services and for any other purpose related to provision of services to you.
You must maintain copies of all data inputted into the service. Whip Around adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of data. Whip Around expressly excludes liability for any loss of data no matter how caused.
If you enable third-party applications for use in conjunction with the services, you acknowledge that Whip Around may allow the providers of those third-party applications to access your data as required for the interoperation of such third-party applications with the services. Whip Around shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by third-party application providers.
You warrant that where you have registered to use the service on behalf of another person, you have the authority to agree to these terms on behalf of that person and agree that by registering to use the service you bind the person on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of these terms, without limiting your own personal obligations under these terms.
You acknowledge that:
Ii. You are responsible for authorizing any person who is given access to information or data, and you agree that Whip Around has no obligation to provide any person access to such information or data without your authorisation and may refer any requests for information to you to address; and
Iii. You will indemnify Whip Around against any claims or loss relating to:
Ii. Whip Around’s making available information or data to any person with your authorisation.
Whip Around gives no warranty about the services. Without limiting the foregoing, Whip Around does not warrant that the services will meet your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that you are acquiring the right to access and use the services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the services, the website or these terms.
Whip Around will not provide any refund for any remaining prepaid period for a prepaid access fee subscription.
These terms will continue for the period covered by the access fee paid or payable under clause 3.1. At the end of each billing period these terms will automatically continue for another period of the same duration as that period, provided you continue to pay the prescribed access fee when due, unless either party terminates these terms by giving notice to the other party at least 60 days before the end of the relevant payment period. If you terminate these terms you shall be liable to pay all relevant access fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these terms. This also applies to removing assets from the platform whereby 60 days notice is required unless the Customer and Whip Around have a specific contractual agreement that states otherwise.
Whip Around may take any or all of the following actions, at its sole discretion:
For the avoidance of doubt, if payment of any invoice for access fees due in relation to any of your billing contacts, billing plans or any of your organizations (as defined at clause 3) is not made in full by the relevant due date, Whip Around may: suspend or terminate your use of the service, the authority for all or any of your organizations to use the service, or your rights of access to all or any data.
Termination of these terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this agreement you will:
Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these terms.
In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting Whip Around. If you still need technical help, please check the support provided online by Whip Around on the website or failing that, email us at [email protected].
Whilst Whip Around intends that the services should be available 24 hours a day, seven days a week, it is possible that on occasions the services or website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Whip Around has to interrupt the services for longer periods than Whip Around would normally expect, Whip Around will use reasonable endeavors to publish in advance details of such activity on the website.
If either party waives any breach of these terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without Whip Around’s prior written consent.
If the information or data you are accessing using the services and the website is solely that of a person who is a tax resident in the united states of america at the time that you accept these terms then the state of california law govern this agreement and you submit to the exclusive jurisdiction of the state courts of san francisco county, california or federal court for the northern district of california for all disputes arising out of or in connection with this agreement. If the information or data you are accessing using the services and the website is solely that of a person who is a tax resident in new zealand at the time that you accept these terms then new zealand law governs this agreement and you submit to the exclusive jurisdiction of the courts of new zealand for all disputes arising out of or in connection with this agreement. If the information or data you are accessing using the services and the website is solely that of a person who is a tax resident in australia at the time that you accept these terms then australian law governs this agreement and you submit to the exclusive jurisdiction of the courts of australia for all disputes arising out of or in connection with this agreement.
If any part or provision of these terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this agreement will be binding on the parties.
Any notice given under these terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Whip Around must be sent [email protected] or to any other email address notified by email to you by Whip Around. Notices to you will be sent to the email address which you provided when setting up your access to the service.
A person who is not a party to these terms has no right to benefit under or to enforce any of these terms.
Additional assets may be added during the applicable Subscription Term and such additional assets will be co-termed with the then-current Subscription Term and will terminate on the same date. The additional licenses, mid-Subscription Term, will be priced at the same fee purchased under the applicable co-termed Contract and will be valid only until the end of such co-termed Subscription Term. New rates may apply upon renewal.