You have two options that you can select in using the WhoSay Site and Services:
(1) you can choose to host your Content on your WhoSay Site (the "Hosting Services"); or
(2) in addition, you can grant WhoSay the right to promote the commercial use of your Content through the WhoSay Site by using commercial partners and opportunities identified by us (the "Commercial Services"), as more specifically described below under the heading Commercial Services (the Hosting Services and Commercial Services, collectively the "Services"). In order to agree to grant us the rights necessary for you to use the Commercial Services, and to generate revenue from your Content, you must follow the procedure set forth below under Section 2.1.
1. Hosting Services
1.2 You Can Decide to Stop Using the WhoSay Hosting Services and Terminate Whenever You Want. You can stop using the WhoSay Site, and terminate the Hosting Services, at any time. We will remove the WhoSay Site within ten (10) days of your written termination request, and will return to you any copies of Content within our possession. Sections 1.5, and 4 shall survive termination of the WhoSay Site.
1.4 Embedding or Linking Your Content. You hereby allow us to provide third parties with code that allows your Content to be embedded on their sites or to join your Content with links in such a way that will drive clicks and traffic to your WhoSay Site or social media pages from third party sites and media platforms.
1.6 Content Rules. You represent and warrant that the Content you provide and post on or through the WhoSay Site will not, whether upon your delivery to us or upon and during our publication thereof: (i) infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation; (iii) be fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, indecent, offensive, pornographic, profane, sexually explicit, promote sex related services, include racial, ethnic, political, or hate mongering content, include investment advice or illegal money-making opportunities, contain gratuitous displays of violence or profanity, promote illegal activities, or harm minors in any way (any of the foregoing, "Prohibited Categories"); (iv) contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (v) constitute or contain unfair, false or misleading indications of origin, endorsement or statements of fact. You will not impersonate any other person or entity, whether actual or fictitious, including us.
1.7 Fan and User Information Belong to You. We may collect certain information from visitors to your WhoSay Site on your behalf, such as email addresses and sms numbers that we collect relating to your fans, registered users or viewers ("User Information") by means of cookies, web beacons or other information technology. We make User Information available to you to use as you see fit, but we will not be responsible for any use that you make of such User Information. We may make use of some of the User Information to, among other things, increase your traffic, inform users of new features, activities, promotions or events, or to share general information with commercial partners in order to increase advertising rates or increase commercial offers that may involve your participation. You acknowledge that other WhoSay users may have fans or viewers in common with you, and therefore others who post to WhoSay Sites may have access to information about some of the same end users that you do. You hereby grant WhoSay the irrevocable right and license to use User Information for its business purposes, including providing the Services to you, and any compilations, statistical analysis or derivatives of any User Information shall belong to us. In the event you terminate your use of the WhoSay Site and Services, we will, upon request, provide you with a copy of the User Information that we have related to your WhoSay Site.
1.9 General WhoSay Use. You grant us the right to use your Content on other WhoSay Sites and applications consisting of aggregated content in a manner intended to promote and highlight your most popular posts and Content and to drive additional traffic to your WhoSay Content and Site. You further grant us the right to couple or place Advertising, as described in Section 2.2 below, in connection with the use of aggregated content which includes any of your Content, and you will be entitled to receive Net Advertising Revenue as described in Section 2.8 below in connection with such use.
1.10 Search Promotion. You grant us the right to employ or engage in paid search engine marketing utilizing your name in order to promote any event, activity, release, exhibition or product related to you and in order to drive clicks and traffic to your WhoSay Site, your website, your social media pages or any other websites which are approved by you.
2. WhoSay Commercial Services Options
2.2 Advertising on WhoSay Sites and in WhoSay Applications. If you activate, you grant us throughout the world, the non-exclusive right, privilege and license, subject to those conditions and restrictions imposed by you, to: (a) couple or place Advertising in, around or associated with any Content, on your WhoSay Site and in media players, syndicated units, widgets and WhoSay applications, at rates or fees, including subscriptions or membership points, determined by us, in various media now known or hereafter devised, including, without limitation, by means of embedded or linked public distribution or performance, syndication, licensing, posting, display or publication. We will seek to obtain the highest rate or fees possible in connection with a specific Advertising placement. The term "Advertising" shall mean any program, service, site, link (such as an Amazon Affiliate link) or navigational element, posting, banner ad, button, graphics, search (such as word search, paid search and advertising units), display ad, pre-rolls, post-rolls or overlay, or other visual, audio, or audiovisual form or other means of display of or access to information and/or media serving to provide any form of advertising, promotion, or marketing, or to enable the purchase of goods or services.
2.3 You May Pre-Impose Restrictions on Commercial Content Use. You shall have the right to reasonably restrict the type and placement of Advertising in connection with your Content by giving us written notice of the restrictions, such as pre-blocking specific advertising genres to prevent conflicts with existing or anticipated endorsements.
2.4 You May Block Certain Advertisers after Activation You shall have the right to stop, ban or restrict specific Advertising in connection with your Content, and upon notice we will stop, ban or restrict the use as soon as commercially practicable. We will by default use all commercially reasonable efforts to screen out and prevent any Content placement in connection with Advertising in standard Prohibited Categories unless you instruct us otherwise.
2.5 Affiliate Program Relationships. If you activate, subject to your right to impose restrictions as described herein, you grant us the right to provide links to be included in your Content pursuant to so-called "affiliate programs" under which you receive revenue in connection with sales or leads generated by clicks from your WhoSay Site or Content.
2.6 Coupon and Offer Deals. If you activate, you grant us the right to drive so-called "offer" or "discount" deals and sales opportunities from your Content, including recommendations you make, under which you receive revenue in connection with discount or other sales generated through your WhoSay Site or Content.
2.7 Licensing. If you activate, you grant us the right to license Content selected by you to third parties for publication on an editorial basis in all media in connection with distribution services agreed to by you via the WhoSay web or mobile applications in each instance, in a manner and on a cost basis to be determined by us, such as pursuant to a subscription arrangement or on a fee per use basis; provided, we will not grant an exclusive right for any specific use for a period in excess of thirty (30) days, after which time you may remove Content from such license, We will not enter into any endorsement or similar licensing agreements using your Content.
2.8 Revenue Share and Accounting.
(a) Commercial Content Use Revenue. You authorize us to collect any amounts payable in connection with any commercial Content use described herein (each a "Commercial Content Use,â and such monies defined as "Commercial Revenue"). You will be entitled to fifty percent (50%) of the Net Advertising Revenue actually collected by us attributable to your Content. The term "Net Advertising Revenue" shall mean the aggregate Commercial Revenue, without deduction for reserves or collection commissions, resulting from the associated Commercial Content Use, less agency commissions, all taxes other than taxes on income, and any other documented direct costs, excluding overhead costs, associated with the sale of associated Advertising, provided that such deductions from gross revenue shall not exceed fifteen percent (15%) of the corresponding Commercial Revenue on a monthly basis.
(b) Independent Merchandise and Advertising Sales by You. Notwithstanding anything to the contrary in clause 2.8 (a) above, you may retain one hundred percent (100%) of any revenue based on sales of merchandise from your WhoSay Site resulting from a campaign or endorsement agreement established by you, provided that such campaign cannot be supported by a third party service which competes directly with us. We shall have no obligation to participate in any related fulfillment or other sales facility that you may establish with respect to such campaigns. You will also have the right to directly sell Advertising on your WhoSay Site, and may retain one hundred percent (100%) of any resultant revenue, it being understood and agreed that (i) such sales cannot be supported by a third party service which competes directly with us as an advertising marketer, (ii) such sales by you are to be made in connection with you, and not specifically against or in connection with the "WhoSay" brand, and (iii) such sales shall not significantly prevent us from selling Advertising as described in Section 2.2 above.
(c) Accounting. We will maintain complete books and records relating to all Commercial Revenue. We will provide you with an accounting statement, within forty-five (45) days of the end of each quarterly period, accompanied by payment, with respect to all Commercial Revenue received by us during such period. You shall have the right, upon reasonable notice, at your expense and on a confidential basis, at our offices and during our normal business hours, to audit our books and records as they relate to Commercial Content Use, no more than once with respect to, and no later than one (1) year after, a given accounting period.
(d) Limited Obligation to Make De Minimus Payments. We shall not be obligated to make any payment with respect to a quarterly period in which the amount payable is less than Two Hundred Fifty Dollars ($250.00); provided that such outstanding amounts shall be carried forward to each subsequent accounting period until the amount outstanding equals or exceeds Two Hundred Fifty Dollars ($250.00) at which point it will be paid as provided herein.
2.10 Post-Termination. In the event that following termination of the Commercial Services, and despite the commercially reasonable efforts of WhoSay to no longer make any Content available for Commercial Content Use, Content is still available for commercial use on or through the WhoSay Site, you may not assert any claim against WhoSay arising from the continued availability of Content ("Claim") until you have identified to us with particularity and in writing the location, means and access points for any such Content and given us at least one (1) week following our receipt of such notice to remove access to such Content. In the event you assert a Claim against us for money damages, the damages sought by you will in no event exceed the actual amount of Net Advertising Revenue we would have owed you related to any such post termination use of the relevant Content, if applicable, through the date we remove such Content.
2.11 Using a Similar Competing Commercial Service at the Same Time as Using WhoSay. If you activate Section 2.2, you agree that during the period commencing with the date of your agreement to the Commercial Services up to the date twelve (12) months after such date you will not concurrently attempt to sell Advertising with the same Content inventory you provide to WhoSay or work with a directly competitive service in a manner so as to cause such Content inventory and Advertising to be sold by one (1) or more competing services, and your agreement shall survive termination of the Commercial Services.
3. Additional Services
3.1 Adding Social Media Sites. It is our intention to provide you with additional worldwide distribution opportunities for your Content. You grant us the right to identify accounts, which can then be established on your behalf on both domestic and international social media and networking services, and we will inform you of the availability of these accounts. You alone determine in your discretion whether to actually use any of these accounts by means of the WhoSay applications, what Content to post to each of them, and when to close any of these accounts. You will be able at any time to assume direct control over any of these accounts.
4. General Items
4.1 We Own the WhoSay Technology Powering the WhoSay Site and the Related Intellectual Property. We own, solely and exclusively, all right, title and interest in and to the WhoSay Site, other than the Content, including but not limited to, code, data, information, hardware, software, technology, methods, design elements, user interfaces and organization of the WhoSay Site, and in and to all of our trademarks, service marks and logos, and your use of the WhoSay Site does not grant you any ownership in or to, or the right to license or otherwise make available to any third party, any of these.
â¨â¨4.3 We Do Not Guarantee the Impact of the WhoSay Site or Revenues. We make no representation or guarantee as to the number of viewers that will visit your WhoSay Site, the number of viewers that will result from the public distribution of your Content, the traffic that will be driven to your WhoSay Site as a result of your use of the WhoSay Site or, if you use the Commercial Services, the amount of Commercial Revenue that will result from your WhoSay Site and use of the Commercial Services.
4.5 We Can Take Action When Notified of Copyright Infringement on a WhoSay Site. The WhoSay Site is subject to the Digital Millennium Copyright Act of 1998, 17 U.S.C. Section 512 (the "DMCA"). The DMCA provides the procedure pursuant to which notice of claims of copyright infringement are to be communicated to a website operator. It is our policy to respond to notices of any actual or alleged infringement that are reported to us. We may remove any Content as a result of any such notice.
4.6 Endorsements. If any federal or other governmental rule or regulation requires that certain language be posted in connection with the advertising, recommendation or endorsement of any goods or services, you shall, or you shall permit us to, post on the WhoSay Site appropriate disclosure or other language according to such rule or regulation.
4.7 General Notices. All notices to us shall be directed to email@example.com, and notices to you shall be directed as instructed by you.
4.8 We Disclaim Any Warranties of Any Kind. THE WHOSAY SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED BY US THROUGH THE WHOSAY SITE, ARE PROVIDED "AS IS," "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND DATA ACCURACY. WE AND OUR AFFILIATES ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, OR USE OF, THE WHOSAY SITE OR SERVICES. IF YOU ARE DISSATISFIED WITH THE WHOSAY SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WHOSAY SITE.
4.9 We Will Not Be Liable For Damages. IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL WE, OUR AFFILIATES, OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE "PROTECTED ENTITIES") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE WHOSAY SITE, THE SERVICES, CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE WHOSAY SITE, OR LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY TO YOU UNDER THIS AGREEMENT WILL BE THE NET ADVERTISING REVENUES RECEIVED BY US IN THE SIX (6) MONTHS PRECEDING ANY CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WHOSAY SITE.
What Information We May Collect about you
In connection with your use of the Service, we may collect different types of personally identifiable information including but not limited to your name, address, gender, e-mail address, SMS number, telephone number, or fax number when you provide such information to us. We may also collect information about your personal or professional interests and use of or opinions about various products, programs and services. In addition , we collect information about you that is included in any content you post to your WhoSay Page, as described in more detail below
We may also collect certain information automatically when you use our Service, such as the type of browser and operating system you are using, your IP address, Internet service provider, platform type, referring and exit websites, your use and navigation of the Service, and other clickstream data. When you use a WhoSay application on your mobile device, we may also collect information about your mobile's location (for example, to display the approximate geographic location from which you have uploaded Content on your WhoSay Page) and your unique device identifier. Your mobile device settings allow you to control whether or not we can collect information about your location.
We may combine the information we collect from and about you with information we lawfully receive from and about you from other online and offline sources.
How We Use the Information
We use information provided by you in order to enable you to post to your WhoSay Page information, text and opinions, and photographs, images, video and audio relating to you, and relating to groups, events, locations, products, topics of interest and good and services (such materials provided by you, "Content"). This Content will be made available to members of the public that view your WhoSay Page and those who have registered with WhoSay ("Viewers"), and we cannot accept responsibility for how those Viewers access, comment on, share, or otherwise use your Content. For this reason, you should take care only to post Content that you are comfortable sharing publicly with Viewers â in exactly the same way that you should when posting Content to any online social networking site. Please be aware that Viewers may choose to "follow" your WhoSay Page, meaning that they will be kept informed (including through e-mail) when you post new Content.
We also use the information you provide to process your registration with the Service, to respond to your inquiries and fulfill your requests and to send you administrative information, such as updates to our Service or its policies. We may also use the information we collect to personalize your experience and to offer you products, programs or services that may be of interest. We may combine information we receive with outside records and share such information with third parties to enhance our ability to market to you those products or services that may be of interest to you. In addition, we may use the information we collect from and about you for our business purposes, such as data analysis, audits, and improving our marketing and our services.
If you choose to submit Content to the Service and/or your WhoSay Page, we may publish your name, screen name and other information you have provided to us. As explained above, please note that any Content you post or disclose through your WhoSay Page may be available to Viewers and to the general public.
We use the information that we collect automatically when you use the Service for research and analytics purposes, including to improve the Service's design, content, and user experience
We may also use small pieces of code such as "web beacons", "pixel tags", or "clear gifs" in connection with the WhoSay Page to, among other things, track the actions of the WhoSay Page Viewers and email recipients, measure the success of our marketing campaigns, and compile statistics about the Service and WhoSay Page usage and response rates.
The use of the technologies described in this section allows our third-party vendors to deliver advertisements when viewers visit the WhoSay Page or other websites or web properties across the Internet. These vendors may place pixel tags, web beacons, clear GIFs of similar technologies by means of the WhoSay Page and third-party websites. These vendors may use information about your use of the Service and other websites to serve advertisements about our products and services, and other companies' products and services. If you would like more information about this practice and to know your choices about not having this information used by these companies, visit the Network Advertising Initiative at www.networkadvertising.org or the Digital Advertising Alliance at www.aboutads.info.
How we disclose the information
We do not share your personally identifiable information with third parties for their direct marketing purposes unless you give us your consent.
We engage certain trusted third parties to perform functions and provide services to us, including, without limitation, hosting and maintenance, customer relationship, database storage, management and analysis, and direct marketing campaigns. We will share your personally identifiable information with these third parties, but only to the extent necessary to perform these functions and provide such services, and only pursuant to binding contractual obligations requiring such third parties to maintain the privacy and security of your data.
We may use and share with third parties certain technical information (including IP addresses) or aggregated information to show general demographic and preference information and viewer patterns among different WhoSay Page viewers.
Third Party Sites
The Service may contain links to other sites whose information practices may be different than ours and for which we are not responsible. You should consult the other site's privacy policies, as we have no control over information that is submitted to, or collected by, these third parties.
We use appropriate technical and organizational measures to safeguard the personally identifiable information under our control. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure.
Our Policy Toward Children
We do not knowingly collect personally identifiable information by means of the Service from children under the age of thirteen (13) without lawful permission. If we become aware that a child under thirteen (13) has provided us with personally identifiable information without the proper lawful permission or authorization, we will delete such information from our system.
Right To Access
You have a right to access the personally identifiable information we hold about you (for which we reserve the right to charge you a small fee, as permitted by applicable law) and to instruct us to correct or update it. Your right of access can be exercised in accordance with applicable law. Please submit any requests for access to your personal data in writing to firstname.lastname@example.org.
Privacy Complaints or Queries
In the event you have a privacy complaint or a query with respect to information collected by WhoSay Inc., you may contact us at email@example.com.
Collection and use of user information
Date Last Modified
January 14, 2013