These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement") between you and Whirlwind FX (as defined below) governing your access to and use of the Whirlwind FX website including any subdomains thereof, and any other websites or applications through which Whirlwind FX makes the Whirlwind FX Products and Services available (collectively, "Site" or "Website") our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application" or "Company Platform") and all associated products & services (collectively, "SignalRGB Services"). The Application and SignalRGB Services together are hereinafter collectively referred to as the "SignalRGB".
When these Terms mention "Whirlwind FX," "we," "us," or "our," it refers to the Whirlwind FX company you are contracting with.
Any and all payment processing services through or in connection with your use of the SignalRGB Platform ("Payment Services") are provided to you by one or more SignalRGB Payments entities (individually and collectively, as appropriate, "SignalRGB Payments").
Members alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their use of the SignalRGB Platform. If you have questions about how local laws apply to your Member Content on Whirlwind FX, you should always seek legal guidance.
1. Scope of SignalRGB Services
1.1 The SignalRGB Platform offers its users smart-device software and hardware products designed to provide immersive gaming and video experiences. This is accomplished through the SignalRGB Platform by enabling its users ("Members" or "Customers" or "Subscribers") to utilize screen-analysis technology with paired computer peripheral devices such as keyboards and mice to produce RGB LED and other lighting effects that respond to on-screen events.
1.2 Members alone are responsible for their use of the SignalRGB Platform. Whirlwind FX is not and does not become a party to or other participant in any contractual relationship between Members and other providers of computer peripheral devices or other third parties. Nor is Whirlwind FX a broker or insurer. Whirlwind FX is not acting as an agent in any capacity for any Member or third party.
1.3 Whirlwind FX has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Members' third-party agreements, (ii) the truth or accuracy of any descriptions or other Member Content (as defined below), or (iii) the performance or conduct of any Member or third party. Whirlwind FX does not endorse any Member or Member Content.
1.4 If you choose to use the SignalRGB Platform as a Member (as defined below), your relationship with Whirlwind FX is limited to being an independent, third-party user, and not an employee, agent, joint-venture or partner of Whirlwind FX for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Whirlwind FX.
1.5 Whirlwind FX retains all Intellectual Property ownership rights of all Member Content created by Members through the use of the SignalRGB Platform.
1.6 The SignalRGB Platform may contain links to third-party websites or resources ("Third-Party Services"). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Whirlwind FX is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Whirlwind FX of such Third-Party Services.
1.7 Due to the nature of the Internet, Whirlwind FX cannot guarantee the continuous and uninterrupted availability and accessibility of the SignalRGB Platform. Whirlwind FX may restrict the availability of the SignalRGB Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the SignalRGB Platform. Whirlwind FX may improve, enhance and modify the SignalRGB Platform and introduce new SignalRGB Services from time to time.
2. Eligibility, Using the SignalRGB Platform, Member Verification
2.1 You must be at least 18 years old and able to enter into legally binding contracts to access and use the SignalRGB Platform or register a SignalRGB Account. By accessing or using the SignalRGB Platform you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
2.2 Whirlwind FX may make the access to and use of the SignalRGB Platform, or certain areas or features of the SignalRGB Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, or your history of using the SignalRGB Platform.
2.3 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member's identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.4 The access to or use of certain areas and features of the SignalRGB Platform may be subject to separate policies or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and Conditions applicable to a specific area or feature of the SignalRGB Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
2.5 When you access the Website, download / install the Application, or use our hardware products, you agree to the terms and services or other applicable binding agreement of the platform, product or service through which you are accessing or downloading, including any browser, application store, device, or other platform.
3. Modification of these Terms
3.1 Whirlwind FX reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the SignalRGB Platform and update the "Last Updated" date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the SignalRGB Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 You must register an account ("SignalRGB Account") to access and use certain features of the SignalRGB Platform. If you are registering a SignalRGB Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 You can register a SignalRGB Account using an email address and creating a password or through your account with Facebook ("SNS Account") if such feature is made available.
4.3 You must provide accurate, current and complete information during the registration process and keep your SignalRGB Account and public SignalRGB Account profile page information up-to-date at all times.
4.4 You may not register more than one (1) SignalRGB Account unless Whirlwind FX authorizes you to do so. You may not assign or otherwise transfer your SignalRGB Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your SignalRGB Account credentials and may not disclose your credentials to any third party. You must immediately notify Whirlwind FX if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your SignalRGB Account. You are liable for any and all activities conducted through your SignalRGB Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
5.1 The SignalRGB Platform, SignalRGB Content, and other content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the SignalRGB Platform and SignalRGB Content, including all associated intellectual property rights, are the exclusive property of Whirlwind FX and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the SignalRGB Platform, SignalRGB Content or other content, unless allowed by Whirlwind FX. All trademarks, service marks, logos, trade names, and any other source identifiers of Whirlwind FX used on or in connection with the SignalRGB Platform and SignalRGB Content are trademarks or registered trademarks of Whirlwind FX in the United States and abroad. Your obligations under this section extend to trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the SignalRGB Platform, SignalRGB Content, and/or other content.
5.2 Intentionally omitted.
5.3 Subject to your compliance with these Terms, Whirlwind FX grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any content made available on or through the SignalRGB Platform and accessible to you.
5.4 You are solely responsible for all Member Content that you make available on or through the SignalRGB Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the SignalRGB Platform or you have all rights, licenses, consents and releases that are necessary to grant to Whirlwind FX the rights in and to such Member Content, as contemplated under these Terms, subject to Whirlwind FX's retention to all intellectual property ownership rights of Member Content created within SignalRGB's platform per Section 1.5 of this Agreement; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Whirlwind FX's use of the Member Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.5 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities or substances; or (vi) violates Whirlwind FX policy. Whirlwind FX may, without prior notice, remove or disable access to any Member Content that Whirlwind FX finds to be in violation of these Terms or Whirlwind FX's then-current policies or otherwise may be harmful or objectionable to Whirlwind FX, its Members, third parties, or property. Whirlwind FX reserves the right to restrict, block, or otherwise modify and regulate any Member Content to ensure compliance with this paragraph.
5.6 Whirlwind FX respects copyright law and expects its Members to do the same. If you believe that any content on the SignalRGB Platform infringes copyrights you own, please notify us.
6. Member Fees
6.1 Whirlwind FX will charge (and Member agrees to pay) the fees described on the "Pricing" page of the Website if made available. Member fees are not refundable and may change from time to time.
7.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the SignalRGB Platform. In connection with your use of the SignalRGB Platform, you will not and will not assist or enable others to:
8. Term and Termination, Suspension and other Measures
8.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Whirlwind FX terminate the Agreement in accordance with this provision.
8.2 You may terminate this Agreement at any time via the "Cancel Account" feature (or similar feature made available) on the SignalRGB Platform or by sending us an email.
8.3 Without limiting our rights specified below, Whirlwind FX may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
8.4 Whirlwind FX may immediately, without notice terminate this Agreement if (i) you have materially breached your obligations under these Terms, the payment terms or our policies (ii) you have violated applicable laws, regulations or third party rights, or (iii) Whirlwind FX believes in good faith that such action is reasonably necessary to protect the personal safety or property of Whirlwind FX, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
8.5 In addition, Whirlwind FX may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the payment terms or our policies, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the SignalRGB Account registration or thereafter, (iv) you and/or your Member Content at any time fail to meet any applicable quality or eligibility criteria, or (v) Whirlwind FX believes in good faith that such action is reasonably necessary to protect the personal safety or property of Whirlwind FX, its Members, or third parties, or to prevent fraud or other illegal activity:
8.6 When this Agreement has been terminated, you are not entitled to a restoration of your SignalRGB Account or any of your Member Content. If your access to or use of the SignalRGB Platform has been limited or your SignalRGB Account has been suspended or this Agreement has been terminated by us, you may not register a new SignalRGB Account or access and use the SignalRGB Platform through a SignalRGB Account of another Member.
If you choose to use the SignalRGB Platform you do so voluntarily and at your sole risk. The SignalRGB Platform is provided "as is", without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate the Whirlwind FX Services, laws, rules, or regulations that may be applicable to your Member Content you are receiving and that you are not relying upon any statement of law or fact made by Whirlwind FX.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
10. Limitation on Whirlwind FX Liability
10.1 You acknowledge and agree that, to the maximum extent permitted by law, you and only you assume the entire risk arising out of your access to and use of the SignalRGB Platform, including collecting and sharing information with Customers and potential Customers and other parties. Neither Whirlwind FX nor any other party involved in creating, producing, or delivering the SignalRGB Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, breach of third-party warranties, computer or peripheral device damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the SignalRGB Platform, (iii) from any communications, interactions or meetings with Customers or potential customers or other persons with whom you communicate, interact or meet with as a result of your use of the SignalRGB Platform, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Whirlwind FX has been informed of the possibility of such damage. The limitations of damages set forth in this Agreement are fundamental elements of the basis of the bargain between Whirlwind FX and you.
10.2 You agree that under no circumstances shall Whirlwind FX be held accountable for damages of any kind, legal or otherwise; injuries (physical, psychological, emotional or otherwise); disagreements, controversies or disputes; or any other harms or potential harms arising out of your use of the SignalRGB Platform and any meetings between Members and Customers or potential customers to provide Member Content or any other services. You further agree to indemnify and hold harmless Whirlwind FX from any harms or potential harms or any damages, legal or otherwise, that may arise out of the meeting of a Member and third-party for the provision of Member Content. Likewise, under no circumstances is Whirlwind FX liable for any harms or damages or potential harms or damages arising out of a meeting of, between, or among a Member, Customer, Subscriber or any third-party for any reasons including those other than the provision of Member Content or any other service described under this Agreement, or via the SignalRGB Platform.
11. Indemnification and Data Privacy
11.1 You agree to release, defend (at Whirlwind FX's option), indemnify, and hold Whirlwind FX and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies, (ii) your improper use of the SignalRGB Platform or any SignalRGB Services, (iii) your interaction with any third party, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use as set out in (but not limited to) Paragraph 10.2 above, (iv) Whirlwind FX's Collection and Remittance of any required taxes, or (v) your breach of any laws, regulations or third party rights.
You agree to indemnify and hold harmless Whirlwind FX and its affiliates and principals from any damages or liabilities arising out of any breach of data privacy laws or regulations with respect to Customers, potential customers, or any individual from whom you collect data, including personal data. This includes the European Union Data Protection Directive (95 46 EC) and the General Data Protection Regulation and other similar laws and regulations in any jurisdiction in which you operate or provide services.
You agree to comply with all data and personal privacy laws, regulations and directives, including those of the European Union and all other jurisdictions in which you reside, operate or provide services, and that it is solely your duty to ensure compliance with such laws, regulations and directives, and not that of Whirlwind FX.
12. Dispute Resolution and Arbitration Agreement
12.1 This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States, but bring any claim against Whirlwind FX in the United States.
12.2 Overview of Dispute Resolution Process. Whirlwind FX is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Whirlwind FX's customer service team, and (2) a binding arbitration administered by the American Arbitration Association ("AAA") using its specially designed Consumer Arbitration Rules. Specifically, the process provides:
12.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Whirlwind FX each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Whirlwind FX's customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
12.4 Agreement to Arbitrate. You and Whirlwind FX mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the SignalRGB Platform, the Member Content (collectively, "Disputes") will be settled by binding arbitration (the "Arbitration Agreement"). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Whirlwind FX agree that the arbitrator will decide that issue.
12.5 Exceptions to Arbitration Agreement. You and Whirlwind FX each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
12.6 Jury Trial Waiver. You and Whirlwind FX acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
12.7 No Class Actions or Representative Proceedings. You and Whirlwind FX acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Whirlwind FX both otherwise agree in writing, the arbitrator may not consolidate more than one party's claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
12.8 Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
13.1 We welcome and encourage you to provide feedback, comments and suggestions for improvements to the SignalRGB Platform ("Feedback"). You may submit Feedback by emailing us, through the "Contact" section of the SignalRGB Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
14. Applicable Law and Jurisdiction
14.1 If you reside in the United States, these Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 12 must be brought in state or federal court in the State of California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in the State of California.
15. General Provisions
15.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines, these Terms constitute the entire Agreement between Whirlwind FX and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Whirlwind FX and you in relation to the access to and use of the SignalRGB Platform.
15.2 No joint venture, partnership, employment, or agency relationship exists between you and Whirlwind FX as a result of this Agreement or your use of the SignalRGB Platform.
15.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
15.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
15.5 Whirlwind FX's failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
15.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Whirlwind FX's prior written consent. Whirlwind FX may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
15.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be in writing and given by Whirlwind FX via email, SignalRGB Platform notification, or messaging service (including SMS and social media applications).
15.8 If you have any questions about these Terms please email us at [email protected].
Effective Date: Dec 2021