Terms of Use

About these Terms

If you are going to use our Services, you must agree to the provisions of this TOS to protect both you and us. If you use our Services, this TOS applies to that use, but here are some of the points about the Websites, Applications, and Services that you should be particularly aware of:

General Terms

We may change, add, or delete portions of these Terms at any time on a going-forward basis. Your use or continued use of the Websites, Applications the Services (including following the posting of any changes to these Terms) constitutes your acceptance of these Terms and any associated changes. We may also require you to provide consent to the updated Terms in a specified manner before further use of the Websites, Applications or Services is permitted.

Use of the Wasdesign Properties

Applications

Subject to your compliance with these Terms, Wasdesign grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of an Application solely for your own personal use or internal business purposes on a single mobile device or computer that you control. Furthermore, with respect to any Application accessed through or downloaded from a mobile app store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on a product authorized to run the mobile operating system (e.g. iOS or Android) and (ii) as permitted by the “Usage Rules” set forth in the mobile app store’s Terms of Service.

Software

Subject to the terms and conditions herein, Wasdesign grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the software made available via the Website (“Software”) for the sole purpose of enabling you to use the Services. Some Software may be offered under an open-source license that we will make available to you.

Certain Restrictions

You may not interfere with or attempt to interfere with the proper functioning of the Wasdesign Properties. You will not engage in or attempt to engage in any potentially harmful acts that are directed against the Wasdesign Properties. You may not use our Services in a way that: (a) violates any applicable law or regulation, or any order of a court; (b) engages in any other activities that: (1) are tortious, libelous, defamatory, or otherwise determined by Wasdesign as objectionable; (2) harm or exploit minors in any way; (3) stalk, or promote discrimination, hatred, harassment or harm against any individual or group; or (4) are abusive, violent or threatening; or (c) otherwise provides information about, encourages, or assists any third party in doing any of the foregoing activities; (d) attempts to bypass or break security mechanisms on any of the Applications or Services or using the Applications or Services in any other manner that poses a risk to Wasdesign or any of its users; (e) attempts to reverse-engineer the Services in order to find limitation, vulnerabilities, or evade filtering capabilities; (f) transmits any material that contains viruses, trojan horses, worms, or any other malicious, harmful, or deleterious programs; or g) involves launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that adversely impacts the availability, reliability or stability of the Services.

Ownership

Except with respect to content provided by you (“Your Content”), you agree that Wasdesign and our suppliers and service providers own all rights, title and interest in the Wasdesign Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Wasdesign Properties.

Fees

General

We reserve the right to offer certain premium Services or features subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service constitute Supplemental Terms. Any purchase will be applied to your account at the time of purchase. In certain cases, the Paid Services may be provided by or through a third party. As such, you agree to (a) review the terms of use and privacy policies of those third parties before providing your banking or payment information and (b) contact those third parties for all payment related questions, issues, disagreements and/or disputes. You agree that you are not relying on the future availability of any feature or product offered through the Wasdesign Properties in agreeing to or making payments hereunder. We reserve the right to remove or amend the available payment methods at our sole discretion.

Automatic Renewal

Where offered, your subscription to Paid Services will continue indefinitely until terminated in accordance with this Section. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an equivalent period, at Wasdesign’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature until you cancel your subscription in the mobile app store. By subscribing, you authorize Wasdesign or its agent, e.g. Apple or Google, to charge the payment method on file (e.g. Mastercard or Visa) directly or indirectly, now, and again at the beginning of any subsequent subscription period. If you cancel your subscription, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires.

Applications

You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g. the mobile app store (“App Store”). You acknowledge that these Terms are between you and Wasdesign and not with the mobile app store. Wasdesign, not the mobile app store, is solely responsible for the Application and Services, the content thereof, maintenance, support services, and warranty thereof and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You also agree to pay all fees (if any) charged by the mobile app store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of service (e.g. the mobile app store’s terms and policies) when using the Application and the Services. You acknowledge that the mobile app store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.

Account Inactivity

Inactive accounts may be removed after a period of inactivity not less than 180 days. In this context, inactive is defined as:

Not maintaining an active, paid subscription; and Not opening the Application; and Not using the Application’s capabilities offered on its free plan.

Removal of an account includes removing all associated data with the account.

General Provisions

Electronic Communications

The communications between you and Wasdesign use electronic means, whether you visit the Website or send Wasdesign emails, or whether Wasdesign posts notices on the Website or communicates with you via email, SMS, MMS, or any other electronic means. For contractual purposes, you (1) consent to receive communications from Wasdesign in an electronic form; and (2) agree that all communications that Wasdesign provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

Assignment

These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Wasdesign’s prior written consent. Any attempted assignment, subcontract, delegation, or transfer is a violation of the foregoing and will be null and void.

Force Majeure

Wasdesign shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to riot, fire, flood, explosion, earthquake or other natural disaster, government regulation, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, national emergency, revolution, insurrection, or other civil unrest, epidemic, restraints or delays affecting carriers or suppliers or inability or delay in obtaining supplies of adequate materials or services, telecommunication or network breakdown or power outage, lock-outs, strikes or other labor disputes, or other cause beyond our reasonable control.

Governing Law

The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

Notice

If required, you are responsible for providing Wasdesign with your most current email address. In the event that the last email address you provided to Wasdesign is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Wasdesign’s dispatch of the email containing such notice will nonetheless constitute effective notice.

Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Severability

If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

Export Control

You may not use, export, import, or transfer the Wasdesign Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Wasdesign Properties, and any other applicable laws. In particular, but without limitation, the Wasdesign Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Wasdesign Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Entire Agreement

These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede all prior discussions between the parties with respect to such subject matter.

Feedback

Any ideas, suggestions, and/or comments you make to Wasdesign (“Feedback”) is at your own risk and Wasdesign has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You agree to grant and hereby grant to Wasdesign a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Wasdesign Properties.

International Provisions

The Wasdesign Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. Wasdesign makes no representations that the Website or the Services are appropriate or available for use in any location. Those who access or use the Website or the Services from other jurisdictions do so of their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below.

Interactions

User Responsibility

You are solely responsible for your interactions with other third parties through the Services. Wasdesign makes no representations or warranties as to the conduct of users of the Applications and Services. YOU ACKNOWLEDGE AND AGREE THAT WASDESIGN AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND SUPPLIERS (COLLECTIVELY, THE “WASDESIGN PARTIES”) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE WASDESIGN PARTIES LIABLE, FOR THE ACTIONS OF ANY USER.

Release

You hereby release the Wasdesign Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any use of the Wasdesign Properties, Applications, or any interactions with or conduct of other users of the Wasdesign Properties or third party websites of any kind arising in connection with or as a result of these Terms or your use of the Wasdesign Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Indemnification

You agree to indemnify and hold the Wasdesign Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; (b) your violation of any rights of another party, or (c) your violation of any applicable laws, rules or regulations. Wasdesign reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Wasdesign in asserting any available defenses. You agree that the provisions in this section will survive any termination of the Services or these Terms.

Term and Termination

Term

These Terms renew on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Wasdesign Properties, unless terminated earlier in accordance with these Terms.

Termination of Services

Subject to the terms herein, if you want to terminate the Services provided by Wasdesign, you may do so by deleting the Application from your devices and cancelling any associated subscriptions or memberships. Wasdesign has the right to suspend or terminate any Services provided to you for any reason, including if you have materially breached any provision of the Terms, if Wasdesign is required to do so by law (e.g., where the provision of the Wasdesign Properties is, or becomes, unlawful). You agree that all terminations for cause shall be made at Wasdesign’s sole discretion. You will not be entitled to a refund of any amounts previously paid to Wasdesign for Paid Services.

Effect of Termination

In the event of termination for any reason, you will immediately cease use of, and delete all Sudo identities that you created using the Wasdesign Properties. All provisions of these Terms, which by their nature should survive, shall survive termination, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability

Limitation of Liability

DISCLAIMER OF CERTAIN DAMAGES

YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WASDESIGN PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WASDESIGN PROPERTIES, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT, THIS TOS, OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT WASDESIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, ON ANY THEORY OF LIABILITY. NOTWITHSTANDING THE FOREGOING, WASDESIGN DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ANY WASDESIGN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN WASDESIGN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

CAP ON LIABILITY

UNDER NO CIRCUMSTANCES WILL WASDESIGN PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY WASDESIGN AS A RESULT OF YOUR USE OF WASDESIGN PROPERTIES IN THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM. IF YOU HAVE NOT PAID WASDESIGN ANY AMOUNTS IN SUCH PERIOD, WASDESIGN’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50). NOTWITHSTANDING THE FOREGOING, WASDESIGN DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ANY WASDESIGN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN WASDESIGN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

BASIS OF THE BARGAIN

YOU AGREE THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WASDESIGN AND YOU.

EXCLUSION OF DAMAGES

CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WASDESIGN PROPERTIES IS AT YOUR SOLE RISK, AND THE WASDESIGN PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE WASDESIGN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON- INFRINGEMENT.

Arbitration Agreement; Class Waiver; Waiver of Trial by Jury

Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Wasdesign and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. By agreeing to arbitration, you are waiving your right to seek relief in a court of law.

i. Applicability of Arbitration Agreement. You acknowledge and agree that any dispute or claim relating in any way to your use of the Websites, Applications or Services, will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claim(s) qualify. Notwithstanding the foregoing, you agree that you will not bring any class action claims in small claims court. The Federal Arbitration Act and federal arbitration law apply to this Agreement.

ii. Waiver of Jury Trial. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms as a court would.

iii. Commencement of Arbitration Proceeding. To begin an arbitration proceeding, you must send a certified letter requesting arbitration and describing your claim to Wasdesign, LLC, 965 E 600 S, Salt Lake City, UT 84102. The arbitration will be conducted by JAMS under its rules. JAMS’ rules are available at www.jamsadr.com. Payment of all filing, administration and arbitrator fees will be governed by the JAMS’ rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Wasdesign will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

iv. No Class Actions. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

Contact Us

If you have any comments, complaints, concerns, questions, requests, or suggestions about these Terms of Service or Wasdesign Properties, email us at support@pencilplanner.app