Terms & Conditions

TERMS OF USE

Hello and welcome to Whiff.com. Whiff, Inc. and/or its affiliates ("Whiff," “our,” or “we”) provide website products, services, promotions, and information when you visit and/or shop at Whiff.com or use any of our properties and services (collectively, “Whiff Services”). All content and services from Whiff are subject to the following Terms of Use (“Terms”). By accessing or using Whiff Services, you acknowledge that you have read, understand and agree, without limitation, to be bound by these Terms, which include our Privacy Policy. If you do not agree, you should immediately cease use of any Whiff Services. We may revise these Terms at any time by updating this page. By using Whiff Services, you agree to be bound by such changes.

 

PRIVACY
Please review our Privacy Policy which governs the use of understand Whiff Services.

 

PERMITTED USERS
Whiff Services are provided for the personal use of persons over 13 years of age or older who are US residents. Use of Whiff Services are for persons who are 18 years of age or older. If you are 13 to 17 years of age, by visiting Whiff Services, you confirm that you have permission from a parent or guardian.

 

ELECTRONIC COMMUNICATIONS
When you use Whiff Services and communicate with us via e-mails, text messages, and other forms of electronic communications from your computer, mobile device, or tablet to us, you agree to receive communications from us electronically, such as e-mails, texts messages, mobile phone notifications, chat messages, web notifications, or other electronic forms of messaging from Whiff Services. You confirm and agree that all notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

COPYRIGHT
All content and formulations included in or made available through any Whiff Service, such as text, graphics, logos, images, and formulations is the property of Whiff or its content suppliers and protected by United States and international copyright laws. All content, in part or whole, made available through any Whiff Service is the exclusive property of Whiff and protected by U.S. and international copyright laws.

 

TRADEMARKS
The trademarks, service marks, logos, slogans, trade names and trade dress displayed on Whiff Services are the registered and unregistered marks of Whiff affiliates, partners or licensors, in the United States and other countries, and are protected by United States and international trademark laws. Except as set forth in the limited license section below, or as required under applicable law, neither the copyrights, trademarks, other intellectual property nor any portion of Whiff Services may be used, reproduced, duplicated, copied, sold, resold, accessed, modified, or otherwise exploited, in whole or in part, for any purpose without our prior written consent.

INTELLECTUAL PROPERTY
You agree that Whiff Services and its content, including without limitation any patents, copyrights, trademarks, inventions or any other intellectual property rights, are owned by Whiff or our affiliates, partners or licensors.

LICENSE

Subject to your compliance with these Terms, Whiff grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use Whiff Services on your personal device exclusively in connection with your use of Whiff Services; and (ii) access and use any information and related materials that may be made available through Whiff Services, in each case exclusively for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Whiff and Whiff’s licensors.

RESTRICTIONS
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of Whiff Services; (ii) copy, reproduce, modify, create derivative works based upon, distribute, share, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit Whiff Services except as expressly permitted by Whiff; (iii) decompile, reverse engineer or disassemble Whiff Services except as may be permitted by applicable law; (iv) link to any full or partial portion, mirror or frame any portion of Whiff Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of Whiff Services or unduly burdening or hindering the operation and/or functionality of any aspect of Whiff Services; or (vi) attempt to gain unauthorized access to or impair any aspect of Whiff Services or its related systems or networks.

YOUR ACCOUNT
You may need your own Whiff account to use certain Whiff Services, and you may be required to be logged in to the account and have a valid payment method associated with it. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. If you are under 18, you may use the Whiff Services only with involvement of a parent or guardian. Whiff reserves the right to refuse service, terminate accounts, terminate your rights to use Whiff Services, remove or edit content, or cancel orders in its sole discretion.

 

If you use a third-party sign on service to create or connect to your account, you expressly authorize Whiff to access your account information maintained by identified third-party data service providers, on your behalf in connection with your use of Whiff Services. Your registration is subject to our review and approval and we reserve the right not to approve, or withdraw approval of, your registration at any time for any reason. In registering an account, you agree to provide, maintain and update information that is true, accurate, current and complete about yourself.

 

REVIEWS AND USER GENERATED CONTENT
You may post reviews, comments, photos, videos, submit suggestions, ideas, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Whiff reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.

If you do post content or submit material, and unless Whiff indicates otherwise, you grant Whiff a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, modify, promote, publish, share, reproduce, adapt, translate, create derivative works from, distribute, and display such content throughout the world in any media format. You grant Whiff and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Whiff for all claims resulting from content you supply. Whiff has the right but not the obligation to monitor and edit or remove any activity or content. Whiff takes no responsibility and assumes no liability for any content posted by you or any third party.

 

COPYRIGHT COMPLAINTS
If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement

PRODUCT AND PRODUCT INFORMATION
Whiff attempts to be as accurate as possible with all product descriptions and images. However, Whiff does not warrant that product descriptions or other content of any Whiff Service is accurate, complete, reliable, current, or error-free.

 

Descriptions made about products have not been evaluated by the U.S. Food and Drug Administration. All products should be used strictly in accordance with their instructions, precautions and guidelines. You should always check the ingredients for products to avoid potential allergic reactions. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information received from Whiff Services before using or relying on them. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.

Products available on Whiff Services, including any samples, are for your personal use only. We reserve the right to limit quantities of products sold or made available for sale and to decline any purchase. Content and products available from Whiff Services may be out of date or differ slightly from the actual products.

 

CUSTOM WHIFF CREATIONS
Parties other than Whiff may create formulations for sale on Whiff Services as a custom fragrance. We are not responsible for examining or evaluating custom fragrances, and we do not warrant, the offerings of any of these custom fragrances or the accuracy of their products and descriptions. Whiff does not assume any responsibility or liability for the actions, product, and content of individuals or entities that create custom fragrances.


DISCLAIMER OF WARRANTIES
Whiff Services and all information, content, materials, products, software, and other services is provided to you on an "as is, as available” basis without warranty of any kind. We make no representations or warranties that use of Whiff Services will be uninterrupted or error free. To the extent permitted by applicable law, we expressly disclaim all warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We make no warranty as to the accuracy, completeness, reliability or availability of Whiff Services or any content available through Whiff Services. You expressly agree to use Whiff Services at your sole risk.

LIMITATION OF LIABILITY
Except for instances of gross negligence, intentional wrongdoing, willful misconduct, or where we have a legal obligation to you, under no circumstances shall we or our affiliates, partners or licensors be liable to you or any other person for any indirect, incidental, consequential, or punitive damages arising out of or relating to these terms, or access to or use of Whiff Services or its content, purchase you make, user content or submissions to Whiff Services, whether such claim or action is based in tort, contract, negligence, strict liability statutory liability or otherwise and even if Whiff has been advised of the possibility of such damages. Your sole and exclusive remedy hereunder shall be for you to discontinue your use of Whiff Services and terminate these terms. These limited remedies shall apply notwithstanding any failure of their essential purpose.

INDEMNIFICATION
You agree to indemnify, defend and hold Whiff, its subsidiaries, affiliates, partners or licensors, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, due to or arising out of (a) any content or materials posted on or submitted to the Site by you; (b) your material, uncured breach of these Terms or the Privacy Policy, any applicable laws that protect us, or our legal rights or those of any third party whose legal rights your actions have damaged; and (c) all activities that occur under your account, username and/or password.

 

PROMOTIONS
From time to time, Whiff may offer special promotions, features, events, contests, sweepstakes, or other offerings (collectively, “Promotions”). These Promotions may be subject to additional terms in addition to or in lieu of these Terms and may be offered by us or by third parties. We will disclose details for such Promotions when offered, and if you choose to take advantage of any Promotion, you agree that your participation will be subject to such additional terms or other guidelines, rules, and/or policies.

The following applies to all promotions, but if different from these terms, the Promotion details on Whiff Services will control: (1) Dates of availability are assumed to be from 12:00:01 am pacific on the start date through 11:59:59 pm pacific on the end date. All times are pacific time zone. Daylight savings is in effect when applicable. (2) An eligible purchase must be completed on whiff.com during the dates of availability as specified. Purchases prior to or after the dates of availability are not be eligible. (3) Promotions are only available while supplies last. A promotion may expire early due to limited quantities on gift with purchase items. (4) All requirements of the promotion must be met in order to redeem a promotion. (5) A promotion may not be used with other promotions on the same order. (6) Promotional offer has no cash value and cannot be resold or transferred. (7) Whiff reserves the right to cancel, suspend or modify part or all of any promotional offer at any time without notice, for any reason in its sole discretion. (8) Returns must include any promotional gift(s) to qualify for full refund. Partial returns must include any promotional gift(s) to quality for a partial refund if the unreturned portion of the order fails to meet the original requirements to qualify for the promotional gift. Promotional gifts may not be exchanged.

SUBSCRIPTIONS AND ORDERS
Products and subscription available on Whiff Services can only be delivered within the United States. Whiff does not deliver outside the United States. You must update your shipping information if you move.

SUBSCRIPTION

Whiff Services may offer certain products or services that require you to purchase a subscription for a period of time as specified during purchase (collectively a “Subscription”). Your Subscription, which may start with a price promotion, will automatically continue on a Subscription-to-Subscription basis unless you cancel your Subscription or we terminate it. We reserve the right to revoke your subscription at any time as a result of a violation of these Terms or the Privacy Policy. Membership is void where prohibited by law.

PAYMENT AND BILLING

Payment Methods: All orders or Subscriptions that you select to purchase, you must provide a current, valid, accepted method of payment, which may change from time to time ("Payment Method"). All Subscription and purchases are subject to the Terms and any additional terms and conditions, including any fees, imposed by your financial services provider and/or mobile carrier, as applicable. By providing your account information with any Subscription or purchase, you hereby authorize Whiff to debit the total cost of Subscription and/or purchase and agree to be responsible for all charges, including any applicable taxes. Should charges for which you are responsible fail at the time payment is required, you will be responsible for all costs and fees associated with any and all efforts by Whiff, to be paid such amounts due, including but not limited to any attorney fees and other expenses to collect payment. You represent and warrant that all information you provide in connection with the purchase of a Subscription and/or purchase is true, accurate and complete. We reserve the right to offer Subscriptions for the time durations and at the costs that we deem appropriate.

 

Billing Cycle: The fee for certain Subscriptions must be paid in a single up front payment while other Subscriptions may allow installments. If the Subscription fee is paid in a single up front payment, the total Subscription fee is due and payable immediately upon sale and your Payment Method will be automatically billed at that time. If the Subscription fee is paid on an installment basis, your Payment Method will automatically be billed at the beginning of each installment period as specified during check-out.

 

Automatic Renewal: To provide uninterrupted service, Whiff automatically renews all Subscriptions on the date the Subscription expires. Such renewals will be for the same duration of the original subscription term and will be billed at the current rate of the applicable subscription and according to your original billing cycle method. By enrolling in a Subscription, you agree that your Subscription will be subject to automatic renewals. You also agree that the amount billed may be different if your original Subscription was purchased using a promotional offer and you authorize us to charge your Payment Method for such varying amounts and any other charges that you may incur in connection with your use of the Subscription. Your Subscription will remain in effect and continue to renew automatically until it is cancelled. If you adjust the subscription frequency of your account, future billing cycles will be charged according to the latest subscription frequency selected. Your shipments will also follow this schedule.

Cancellation: If you desire to cancel your Subscription or Subscription Renewal, contact us at support@whiff.com. Whiff will process cancellation requests within seven business days from the receipt of the cancellation request. If you cancel, you may use your Subscription until the end of your then-current subscription term which has been paid in full.

 

RETURNS AND REFUNDS
If you are unsatisfied with our product, Whiff will grant you a refund for unused products. It is your responsibility to contact Whiff at support@whiff.com and arrange a return and ship the product back to Whiff at your own expense. There are no refunds for products shipped according to a subscription but you may exchange them for another product, with a maximum of one exchange for every three months.

 

GOVERNING LAW

This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of California, as applied to agreements entered into and completely performed in the State of California without regard to conflicts of laws rules. In the event, and for whatever reason, should the arbitration clause below be inapplicable, then you consent to the jurisdiction of the federal or state courts located in San Diego County, California for purposes of any suit, action or proceeding arising out of these Terms, and you hereby consent to such exclusive and personal jurisdiction and venue. Any claim you might have against the Company must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. In addition, you agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please contact the Company if you wish to receive a printed copy of this Agreement. If any Material on Whiff Services, or your use of Whiff Services, is contrary to the laws of the jurisdiction where you are when you access it, then Whiff Services is not intended for you, and we require that you not use Whiff Services. Those who choose to access Whiff Services from outside the United States do so on their initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are responsible for informing yourself of the laws of your jurisdiction and complying with them.

 

WHIFF CUSTOM FORMULATION AND WHIFF LABS MEMBER
When you use Whiff Services and you create, own, are assigned, or inherit ownership of any custom formulation, you become a Whiff Member (“Member”). We are excited to work with Members to develop your own unique scent.  Have fun!  Before we begin, please read the Terms below.

 

CONFIDENTIAL INFORMATION
Whiff is an exciting new concept, with no equal in the marketplace. What you see, hear, and learn while working with Whiff team members, using Whiff products, at the Whiff facilities, or access to any Whiff information is confidential or trade secret information belonging to Whiff or its affiliates. The types of ingredients we use, the way we combine them, the way we package them, and our business models are just some examples of confidential or trade secret information you may observe or learn while working with Whiff. Whiff grants you the rights to use this information solely while working with Whiff and exclusively for the purposes of creating a custom formulation at Whiff.


As consideration for the experience of creating your own scent, you agree not to disclose to any other person or entity any of the Whiff confidential or trade secret information. Your obligation of confidentiality will remain forever unless Whiff makes the information public.

Conversely, as a scent manufacturer, Whiff is subject to regulations that require it to disclose the contents of its scents.  Therefore, you agree that Whiff may disclose the contents of your custom fragrance, including the composition of it, in any form to anyone, including on its packaging, its website, and in regulatory disclosures.


OWNERSHIP OF THE CUSTOM FORMULATION OR SCENT
The goal of the custom fragrance experience is for Members to create a new, wonderful, unique scent that is all yours and available exclusively through Whiff. Therefore, you represent to Whiff that you will not knowingly reproduce any fragrance that has already been developed or is protected by a trade secret or other intellectual property right. You also represent that you will not knowingly violate any third party’s intellectual property rights with respect to any name, imagery, artwork, or other packaging “look and feel.”


Any scent formula Members create at Whiff is the exclusive property of Whiff and can only be available for purchase through Whiff and its approved third party vendors. Whiff shall own any and all rights in and to the custom scent, its name, its brand, and any art or images you associated with the scent, unless such art or images are not specifically designed for the scent and more generally associated with you or your brand (e.g., your logo), in which case you grant Whiff a royalty-free, worldwide license to reproduce and to use such art and images to further the production of your scent. If you terminate your Membership, Whiff shall have the right to use the art and images, and distribute your scent, until all inventory or in-process products are distributed. Whiff and Whiff alone shall own all the rights to make, have made, sell, license, reproduce, distribute, and otherwise exploit the scent, its name, its brand, and any related art or images.


Nothing in the Terms, or as part of the custom fragrance experience, shall be deemed to grant any right, title, or interest in any property of Whiff, including any Whiff trademarks, patents, patent applications, copyrights, or other intellectual property rights.


Also, you understand and agree the Terms do not create any obligation on Whiff to disclose any confidential or trade secret information to you, to enter into any commercial relationship with you, or to market, promote, or offer your custom fragrance, and Whiff makes no representations that it will make your scent available to its customers.
You agree that if you violate any of the Terms, monetary damages alone will not suffice to protect Whiff’s interests, and, therefore, Whiff shall be entitled to an injunction or other equitable relief to stop any such violation.

Lastly, you agree that if Whiff changes names, changes ownership, or is merged into another company, the rights you have granted to Whiff in the Terms survive and accrue to the benefit of Whiff’s successors and assigns.

MEMBER’S AGREEMENT AND RELEASE
I agree to be bound by the Terms, as it may be modified from time to time. Furthermore, I understand that as a result of my scent being offered by Whiff, my words, actions, and affiliations reflect on Whiff. I acknowledge that Whiff may terminate my Membership at any time and without notice if, in its sole and absolute discretion, Whiff determines that my conduct or brand does not reflect positively on Whiff.

TERMINATION
You may terminate these Terms by providing written notice to us at support@whiff.com. Upon such termination, you shall cease all use of Whiff Services and we shall be permitted to delete your account and any and all information associated therewith.

We may, with or without prior notice, terminate any of the rights granted by these Terms. you shall comply immediately with any termination or other notice, including, as applicable, by ceasing all use of Whiff Services.

 

ARBITRATION AND CLASS ACTION WAIVER

ANY CLAIM OR DISPUTE RELATING IN ANY WAY TO YOUR USE OF WHIFF SERVICES OR THESE TERMS SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION, except that either party may seek interim relief from any state or federal court in the party’s state of residence to protect the party’s intellectual property rights. ARBITRATION WOULD REMOVE YOUR RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. IT IS IMPORTANT THAT YOU READ THIS PROVISION CAREFULLY BEFORE ACCEPTING THESE TERMS. The arbitration will be administered by the American Arbitration Association or National Arbitration and Mediation, Inc. under The National Arbitration Forum’s Code of Procedure in effect when the claim is filed (the “Code”). The Code and other information may be obtained from the National Arbitration Forum website (www.adrforum.com). The Company shall have the ability to choose between these two forums as well as choose a venue that is convenient for the Company. The parties shall split 50%/50% the cost of the administrative and arbitrator fees. Notwithstanding any choice of law provision included in the Terms, this arbitration section is subject to the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and the New York Convention on the Recognition of Foreign Arbitral Awards (9 U.S.C. §§ 201-208 or as codified in the jurisdiction where enforcement of the award is sought). The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute or controversy between you and the Company. Hearings shall be held as provided by the Code and if any in-person hearing is required, it shall be held in a venue chosen by the Company. Any participatory arbitration hearing that you attend shall take place in California. California state law will apply during the arbitration. The judgment upon the award rendered by the arbitrator(s) shall be final and binding and may be entered in any court of competent jurisdiction. Unless inconsistent with applicable law, each party shall bear the expense of their respective attorneys’, experts’ and witness fees, regardless of which party prevails in the arbitration.

 

NO CLASS ACTIONS

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

 

NOTICE AND PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Whiff may, in our sole discretion, disable and/or terminate use by users who infringe the intellectual property of others. If you believe that your intellectual property rights have been violated, please provide our copyright agent a notice with the following information:
1) an electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest
2) a description of the copyrighted work or other intellectual property that you claim has been infringed
3) a description of where the material that you claim is infringing is located on the website
4) your name, address, telephone number, and email address
5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. Our copyright agent for notice of claims of copyright or other intellectual property infringement can be reached by sending an email to: support@whiff.com.

NOTICE REQUIRED BY CALIFORNIA LAW
California residents are entitled to the following specific consumer rights notice:

The name, and address of the provider of this service is:

Whiff, Inc.

5857 Owens Avenue Suite 300

Carlsbad, CA 92008

Complaints or requests to receive further information regarding may be sent to the above address or to support@whiff.com.

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or telephone (916) 445-1245 or (800) 952-5210. Hearing impaired may call TDD (800)-326-2297 or TDD (916)-928-1227.

 

GENERAL
You may not assign these Terms without Whiff’s prior written approval. Whiff may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Whiff’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Whiff or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Whiff’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Whiff in writing.

 

CONTACT INFORMATION
Questions about the Terms should be sent to us at: legal@whiff.com