Terms of Service

Last updated May 25, 2021.

BY USING THE APP YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING THEM. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE APPS OR THE WEBSITE.

YOUR USE OF AND ACCESS TO THE APP IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

This document contains information explaining your rights to access and use Whoosh App (the “App”) and constitutes a binding agreement between you and Banuba. These Terms do not alter in any way the terms or conditions of any other agreement you may have with Banuba for products, services or otherwise.

While we make reasonable efforts to provide accurate and timely information about our App, you should not assume that the information is always up to date or that the Site contains all the relevant information available about Banuba.

1. DEFINITIONS AND INTERPRETATIONS

1. Eligibility & Acceptance

The App is not targeted towards, nor intended for use by, anyone under the age of 16. A USER MUST BE AT LEAST AGE 16 TO ACCESS AND USE THE APP. If You are younger than 16 years, you can only access or use Our apps, if your parent(s) or legal guardian have/has reviewed this Agreement and allowed you to access and use Our Apps. Banuba may require adequate proof of your identity and age and consent from a parent or guardian at any time.

These T&C shall take effect immediately upon Your first use of the App. If You wish to use more than one App covered by these T&C, You are expected to agree and accept these T&C each time using a new App.

You further acknowledge that Your failure to comply with these T&C may result in disqualification and/or legal action against You as deemed appropriate and as more particularly detailed below.

Application stores and platforms may provide their own terms that apply to Your relationship with these app stores and platforms.

2. Privacy

Providing our Services requires collecting and using your personal information. The Privacy Policy, which is the integral part of these T&C, explains how we collect, use, and share information. It also explains the ways you can control your information access.

3. Email Communications

If You leave Your email on the Site, You are, by default, opted in to receive email communications, including marketing communications, from Banuba (“Email Communications”). If You do not wish to receive communications from Banuba, please, do not share Your email with Us.

You may request to opt out of receiving marketing communications from Banuba. Please address Your inquiry to legal@banuba.com.

4. Modification

We reserve the right to suspend, discontinue, modify, remove or add any features or functionalities in the App, temporarily or permanently, in its absolute discretion with immediate effect and without an obligation to notify You and We shall not be liable in any way whatsoever for any loss suffered as a consequence or any decision made by Us in this regard.

5. Ownership

Unless otherwise indicated, the App and all content and other materials therein, including, without limitation, all copyrights, trade secrets, patents, trademarks, domains and other Intellectual Property Rights in and to the App, interface, design, features and functionality, any information, images, photos, videos, video effects, communications, logo, text, graphics, information, data, software, sound files, other files and the selection and arrangement thereof are the property of Banuba or Our respective licensors.

You do not gain any rights to the App due to using it. For the purposes of adding content to our App we may engage suppliers. If we do so, We will let You know and make available any references to information of high importance. Currently we use GIPHY SDK in GifYou. GIPHY SDK allows us to support timely update and variety of the content. Use of GIPHY SDK is covered by GIPHY Terms of Service available here: https://support.giphy.com/hc/en-us/articles/360020027752-GIPHY-User-Terms-of-Service

6. User License

Subject to Your compliance with these T&C, We grant You a personal, non-transferable and non-exclusive, limited and revocable license to use the App, and the App content for Your personal, non-commercial use in accordance with these T&C. All rights not expressly granted are reserved.

As a part of the App, Banuba may make available to You various content via the App, including any software, images, pictures, graphics, photographs, animations, audio, visual, audiovisual works and text or other content (“Content”). The Content is the property of Banuba or Our suppliers, and You do not gain any rights to the Content due to using the Apps or the Site.

The rights granted to you in this Agreement are subject to the restrictions, where You are not permitted to, and You agree not to permit or authorize others to:

a. copy, reproduce, modify, reverse engineer, create derivative works from or distribute Banuba mobile App or any part thereof, including but not limited to Banuba App content, or any copy, adaptation, transcription, or merged portion of it;

b.  decode, disassemble, decompile or otherwise translate or convert Banuba mobile App;

c. distribute, publicly display and broadcast the App;

d. sell, transfer, license, distribute, loan, lease, assign, rent, or otherwise sublicense Banuba mobile App or Your access to the App;

e. use the App or the Content for any purpose other than Your personal use;

f. remove, alter, or obscure any copyright, trademark, attribution and any other proprietary notices from the Apps or the Site or the Content.

In other words You are granted only a limited, non-exclusive, non-transferable, non-assignable right to use the App and the App content; no ownership interest in the Banuba App is transferred to You. If You want to use the App for some commercial purposes, please contact Us via email legal@banuba.com.

7. Acceptable Use

It is Your sole responsibility to ensure that at all times You comply with the laws that govern You and that You have the complete legal right to use the App. Any use of the App is at Your sole option, discretion and risk and may only be for lawful purposes. By using the App, You acknowledge that You do not find the App to be offensive, objectionable, unfair, or inappropriate in any way.

To use the App You do not need to open an account or otherwise register within the Apps or the Site.

As a condition of Your use of the App, You warrant and undertake that You shall not use or access the App for any unlawful purpose under any law that is applicable to You or that is prohibited by or in breach of these T&C. In particular (and in addition to all other representations and warranties set out in these T&C) You warrant as a condition of use of the App that:

In case the App are used in the manner or for purposes, which can be considered illegal, or violating third parties’ rights or with other violations the User will be solely responsible for any and all legal consequences of such usage.If You see content that violates the restrictions set out above, please contact Us at legal@banuba.com.

We do not guarantee that the App can be used on any particular device or with any particular service plan.

8. Your Content

Your Content means any and all content that You upload, distribute, or otherwise provides via the App. By using the App, You represent and warrant that You are the author and copyright owner and/or proper licensee with respect to any hosted content uploaded and linked by You and You further represent and warrant that no such content violates the copyright, trademarks or other Intellectual Property Rights of any third party or violates the right of publicity and/or invade the privacy through misappropriation of name or likeness. If You use another party’s material, You must obtain prior authorization.

Hereby You agree to indemnify Us for all claims resulting from Your content.

Any Your content posted/uploaded on, shared, transmitted through, or linked from the App is Your individual responsibility. You assume all risks associated with the use of Your Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your Content that makes you or any third party personally identifiable. You may not state or imply that Your content is in any way provided, sponsored or endorsed by Banuba. Banuba is not obligated to backup any user content and user content may be deleted at any time. You are solely responsible for creating backup copies of Your content if you desire.

You represent and warrant that Your Content is not subject to any confidentiality obligations and that you own and control all of the rights to Your Content, have the lawful right to distribute and produce Your Content, or otherwise have the right to grant the rights to Banuba that you grant herein. Banuba claims no ownership or control over Your Content, except as otherwise provided herein, in the App or in a separate agreement. You retain Your ownership rights in Your Content. However, by submitting or posting Your Content, you grant Us and Our designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, distribute, publicly display, reproduce, modify, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the Your Content. This license is for the limited purpose of operating, developing, providing, promoting, protecting and improving the App, as well as researching and developing new ones.

By posting Your Content, you hereby release Banuba and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of Your Content.

If You believe that Your work has been copied and posted in the App in a way that constitutes copyright infringement, please notify Us via mail legal@banuba.com accompanying corresponding content. We will take such action (if any) that We in Our absolute discretion deem appropriate.

In the event We receive a notification from another user or any third party that Your content contains any materials infringing Intellectual Property Rights of any party We reserve the right to delete such content from the App without any notification to You and/or take such action that We in Our absolute discretion deem appropriate in order to cease corresponding infringement. You hereby also acknowledge and agree that Banuba is entitled to notify of the infringement the owner of corresponding Intellectual Property Rights infringed.

We have the right but not the obligation to monitor all activity and edit or remove any Your Content that in Our opinion violates Intellectual Property Rights of any party or these T&C without prior notice to You. Because We do not review all content expressed or made available via the App, We cannot guarantee that it will always conform these T&C, incl. accuracy, integrity or quality of such content. As a result, We cannot and do not take responsibility for any content that others provide through the App. You understand that by using the App, You may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances shall Banuba, its shareholders, directors, officers, or employees be held liable for any loss or damage caused by Your reliance on information obtained through using the App. It is Your responsibility to evaluate the information, opinion, advice, or other content available.

You hereby do and shall grant us a non-exclusive, worldwide, perpetual, royalty-free, fully paid, transferable, sublicensable right to use, modify, reproduce, distribute, prepare derivative works of, display, perform and otherwise fully exploit such Content (including all related intellectual property rights) in connection with the App and our business. You promise that you have all rights to grant such license to us without infringement or violation of any third party rights.

Except for content that is in the public domain or content that you have permission to use in connection with your use of the App and in compliance with these T&C, you shall not copy, modify, publish, transmit, distribute, perform, or display any content, nor shall you sell, license, rent, or otherwise use or exploit any content for commercial use or in any way that violates any third party right.

9.  Feedback

Separate and apart from Your content you provide, you may submit questions, comments, feedback, suggestions, improvements, ideas for new products, technologies, promotions, product names, product improvements (“Feedback”). If You send any Feedback to Us through the App, You acknowledge and agree that We shall not be under any obligation of confidentiality with respect to the Feedback and You agree that Banuba shall have the right to use such Feedback and related information in any manner it deems appropriate. Please do not send us Feedback if you expect to be paid or want to continue to own or claim rights in it.

By submitting your Feedback, you grant Banuba and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the Idea and shall be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. By submitting your Feedback, you hereby release Banuba and its agents and employees from any claims that such use violates any of your rights.

10. Ads

When you access or use the App, it may display an ad, e.g. banners, rewarded videos and/or interstitial ads.

Sometimes you might see advertising available via suppliers we engage for providing Services to You. In particular, advertising displayed by GIPHY.com may become available. Giphy will collect certain data from You as further set forth in its Privacy Policy Please read GIPHY Privacy Policy available here: https://support.giphy.com/hc/en-us/articles/360032872931.

11. Links to websites

Banuba mobile App may, from time to time, contain links to websites, which are outside of Our control and are not covered by these T&C. If You access the websites using the links provided, You will have to comply with relevant terms and condition of such websites. We do not accept any responsibility or liability for using the services provided on the websites, which You may access through links contained in Banuba mobile Apps.

The operators of these websites may collect information from You, which will be used by them in accordance with their privacy policy, which may differ from ours. We do not accept any responsibility or liability for these policies. Please check these policies before You submit any information to these websites.

We are providing the links to websites to You only as a convenience, and the inclusion of any link does not imply endorsement by Us of its operators.

12. Indemnification

You agree to defend, indemnify and hold harmless Banuba (and its suppliers) from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties resulting from or relating to: (i) your use of the App, (ii) Your Content, or (iii) your violation of this Agreement, (iiii) violation by You of any law or any third party rights, including Intellectual Property Rights. Banuba reserves the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify Banuba and you agree to cooperate with our defence of these claims. You agree not to settle any matter without the prior written consent of Banuba. Banuba will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

Without prejudice to any other rights contained in these T&C, if You breach in whole or in part any provision contained in these T&C We reserve the right to take such action as We see fit, including terminating these T&C, immediately blocking Your access to the App, and/or taking legal action against You.

You are responsible and liable for all activities that take place through the App installed on Your Devices.

We will not be liable for any loss that You may incur as a result of someone else using the App installed on Your Devices, either with or without Your knowledge. In addition, You may be held liable for any losses incurred by Us or another party due to someone else using the App installed on Your mobile Devices.

13. Disclaimers and Limitation of Liability

Under no circumstances, including negligence, shall We be liable for any damages or losses, without limitation, that are deemed or alleged to have resulted from or caused by the App, including without limitation delays or interruptions in operation or transmission, communications, lines failure, any person’s use or misuse of the App, any errors or omissions in Content, or viruses or bugs in the App or any loss or damage of any kind incurred as a result of the use of the App or Content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND CONTENT ARE PROVIDED TO YOU “AS IS” AND WE PROVIDE YOU WITH NO WARRANTY OR REPRESENTATION WHATSOEVER, EXPRESSED OR IMPLIED, REGARDING THEIR QUALITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, FITNESS FOR PURPOSE, COMPLETENESS OR ACCURACY. NON-INFRINGEMENT, OR THAT USE OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE. YOUR USE OF THE APPS IS SOLELY AT YOUR OWN RISK.

For the avoidance of doubt, We further disclaim any and all warranties, representations and responsibilities in respect of any aspect of the App which may be provided by third parties, including but not limited to telecommunication providers, and shall not on any account be liable for any default, breach or inaction of such third party partners.

To the maximum extent permitted by applicable law, under no circumstances, including negligence, shall We, Our related corporations, shareholders, affiliates, partners, officers, employees and agents be responsible or liable for any damages, losses or expenses, including without limitation direct, indirect, consequential or special damage or economic loss arising from or in connection with Your access, loading, installation or use of the App regardless of whether We have been advised of such a possibility or not. In no event shall Our total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

You hereby acknowledge and agree that all disclaimers and exclusions of liability contained in these T&C represent a fair and reasonable allocation of the risks and benefits of these T&C, taking all relevant factors into consideration. You further agree that these disclaimers and limitations shall be enforceable to the extent permitted by applicable law.

14. Social Widgets

Our App may include Social Media Features, such as links to social networks like Twitter, LinkedIn, YouTube and Facebook. Your interactions with these features are governed by the privacy policy of the company providing the service.

15. Application of these T&C

If there is any conflict between these T&C and any other localised terms and conditions governing the use of and access to the App to which You have consented, the localised terms and conditions shall prevail.

The English language version of these T&C shall be the prevailing version in the event of any discrepancy between any translated versions of these T&C.

We reserve the right to amend these T&C or any part thereof at any time. It is Your responsibility to check these T&C from time to time to ensure that You agree with them and Your continued use of the App will be deemed to be Your acceptance of any amendments to these T&C. If You do not accept these T&C following an amendment, do not start or continue to use the App.

16. Updates

We may automatically check Your version of the App. We are of no obligation to make available any updates. However, We may offer You to download and install updates.

17. Governing Law

These T&C and any matters relating hereto shall be governed by, and construed in accordance with, the laws of Hong Kong. Each party irrevocably agrees that the relevant courts of Hong Kong shall have the exclusive jurisdiction in relation to any claim, dispute, or difference concerning these T&C and any matter arising therefrom and irrevocably waives any right that it may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Your use of the App may also be subject to other local, state, national, or international laws.

We and You each agree that if You are a user of the App located in the United States or Canada, each of We and You may bring disputes against the other only on its or Your own behalf, and not on behalf of any other person or entity, or any class of people. We and You each agree not to participate in a class action, a class-wide arbitration, disputes brought in a private attorney general or representative capacity, or consolidated disputes involving any other person or entity in connection with any dispute.

18. Term and Termination

These T&C come into force from the moment of Your first use of the App.

You may terminate these T&C at any time by sending Us a written notice of the termination. Or You may simply delete the App.

After termination of these T&C for any reason whatsoever any rights, obligations and/or liabilities accrued before the date of termination shall continue in force until their full completion.

You acknowledge and agree that We are authorized to block Your access to the App for any violation of these T&C.

Further, We may terminate these T&C with immediate effect at any time, unless circumstances dictate that We legally or practically cannot do so. You acknowledge, that We are not obliged to explain You the reasons for terminating these T&C and Your access to the App.

Upon termination, You shall cease all use of the App, and destroy all copies, full or partial, of Banuba mobile App.

19.  Miscellaneous

You shall not assign, transfer, charge, create a trust over or otherwise deal in Your rights and/or obligations under these T&C (or purport to do so). We reserve the right to assign these T&C, in whole or in part, at any time without further notice to You.

If a provision of these T&C is or become illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision hereof or the validity or enforceability in other jurisdictions of that or any other provision hereof.

All provisions of these T&C which by their nature extend beyond the expiration or termination of these T&C, including, without limitation, the sections relating to legal use restrictions, prohibited activities, dispute resolution, will continue to be binding and operate after the termination or expiration of these T&C.

The headings in these T&C are for reference only and do not affect the construction or interpretation of any provision.

If We fail or delay the performance of any obligation under these T&C due to the reasons of the occurrence of events which are beyond Our control, including, but not limited to acts of God, Government restrictions, wars, insurrections, transmission or system failures, failure or interruption in the provision of telecommunications or broadband services and failure or shortage of power supplies or equipment, such failure or delay does not constitute a breach of these T&C.

Nothing in these T&C give You a right to use any of Banuba’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.

Neither failure nor delay on the part of Banuba to exercise any right, remedy, power or privilege hereunder shall operate as a waiver thereof, or of the exercise of any other right, remedy, power or privilege.

Nothing in these T&C shall create or confer any rights or other benefits in favour of any third parties not party to these T&C.

Nothing in these T&C shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary relationship or joint venture between You and Us.

These T&C constitutes the entire understanding and agreement between Us and You regarding the App and supersedes any prior agreement, understanding or arrangement between Us and You.

20. Questions

Please email Us at legal@banuba.com with any questions You have about these T&C.