Terms and Conditions

Last updated: 11/22/2023


Introduction

This Terms of Use Agreement ("Agreement") constitutes a legally binding agreement by and between MAKANI ART LLC, a limited liability company organized under the laws of the state of Wyoming, doing business as Whoa Dude Design ("Whoa Dude Design"), and the client, whether personally or on behalf of an entity ("Client"). This Agreement governs the use of Whoa Dude Design's online services and website at https://www.whoadude.design ("Website"). Failure to agree and adhere to all of the terms, conditions and obligations contained herein results in the express prohibition of the Client's use of the Website.

1. Intellectual Property Rights

The Website and all its contents, including source code, databases, functionality, software, website designs, audio, video, text, photographs, graphics (collectively, "Content"), and all trademarks, service marks, and logos contained therein ("Marks"), are owned by Whoa Dude Design. These elements are protected under copyright, trademark laws, and other intellectual property laws and regulations of the United States and other jurisdictions, as well as by international conventions. The Client agrees to respect the intellectual property rights of Whoa Dude Design and third parties. Any unauthorized use of the Website’s Content or Marks, including reproduction, modification, distribution, or republication, without the prior written consent of Whoa Dude Design or the rightful owner, is strictly prohibited. The Client must not engage in any activity that infringes upon these rights, including copying, altering, or exploiting the Content or Marks for any unauthorized or unlawful purposes.

2. Ownership and Rights of Materials
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All design and original source files created by Whoa Dude Design for Clients (referred to as "Projects") are exclusively owned by the Client upon completion and payment. Whoa Dude Design unequivocally assigns all rights, titles, and interests in the Projects to the Client, making the Client the sole owner of the copyright for these Projects. However, it is the Client's responsibility to ensure that any materials, ideas, or content provided to Whoa Dude Design for inclusion in these Projects are either owned by the Client or that the Client has obtained necessary permissions or licenses. This responsibility includes ensuring that such materials do not infringe upon or violate any third-party rights, including but not limited to intellectual property rights, privacy rights, and publicity rights.

Notwithstanding the foregoing, Whoa Dude Design retains the right to display, reproduce, and publicly share any completed Projects for promotional purposes, such as showcasing Whoa Dude Design’s portfolio of work on digital platforms including the Website, social media, and other marketing channels. This right is subject to the terms outlined in Paragraph 17 of this document, particularly regarding any Non-Disclosure Agreements (NDAs) or specific confidentiality agreements made with the Client. In the event of such agreements, Whoa Dude Design will respect the stipulations therein concerning the non-public display of certain Projects.

This clause ensures a balance between the Client’s ownership and confidentiality interests and Whoa Dude Design’s need to demonstrate its professional capabilities and achievements.

3. Third-Party Fonts

In the course of creating design projects for Clients, Whoa Dude Design may occasionally use fonts that are not owned by Whoa Dude Design and require a commercial license for their legal reproduction, distribution, or public display (“Third-Party Fonts”). If a Client’s project includes such Third-Party Fonts, Whoa Dude Design will notify the Client in writing, clearly identifying the Third-Party Fonts used and providing information necessary for the Client to obtain the appropriate licenses from the respective rights-holders.

This notification will guide the Client on how to legally acquire the necessary licenses for the Third-Party Fonts to lawfully reproduce, distribute, or publicly display the project. Upon receipt of this notification, the Client assumes full responsibility for acquiring these licenses and for any legal consequences that may arise from failing to do so. Whoa Dude Design’s responsibility is limited to informing the Client about the use of Third-Party Fonts and does not extend to obtaining these licenses on behalf of the Client.

4. Client Feedback

Whoa Dude Design values feedback from Clients, which includes any questions, comments, suggestions, or other forms of communication or input provided by the Client to Whoa Dude Design (collectively referred to as “Submissions”). It is explicitly understood that such Submissions pertain to the Client's experiences, suggestions for improvement, or general feedback about Whoa Dude Design's services and do not include any design work, original source files, or other materials created as part of the Client's projects.

Upon submission, all rights to these Submissions become the sole property of Whoa Dude Design. Whoa Dude Design is not obligated to treat any Submission as confidential and may use and disseminate Submissions at its sole and unrestricted discretion for any lawful purpose without seeking further permission, acknowledgment, or compensation from the Client.

The Client represents and warrants that they have the legal right and authority to provide such Submissions and agrees to waive all claims and recourse against Whoa Dude Design for the use of the Submissions in accordance with these terms. This clause is to be interpreted in a manner that does not conflict with Paragraph 2 ("Ownership and Rights of Design Projects") of this agreement, ensuring that the intellectual property rights related to specific design projects and source files remain with the Client.

5. User Representations and Prohibited Activities

By accessing and using the Website, the Client agrees to adhere to all applicable laws and ethical guidelines. The Website is intended for legitimate use aligned with the services provided by Whoa Dude Design. Clients are expected to respect the following terms:

• Lawful and Ethical Use: The Client must use the Website only for lawful purposes and in a manner that does not infringe on the rights of, or restrict or inhibit the use and enjoyment of the Website by, any third party. This includes conduct that is unlawful, fraudulent, or harmful, or in connection with any unlawful, fraudulent, or harmful purpose or activity.
• Prohibited Activities: The Client is strictly prohibited from engaging in activities such as unauthorized access to the Website, data harvesting, compromising security features, unauthorized framing or linking, conducting or promoting fraudulent activities, disrupting or interfering with the operation of the Website, engaging in any activity that competes with Whoa Dude Design, reverse engineering any aspect of the Website, bypassing or attempting to bypass any measures employed to prevent or restrict access to the Website, harassing or causing inconvenience to any user, removing or altering any copyright notices or other proprietary rights notices, and uploading, posting, or transmitting harmful or illegal content, including but not limited to viruses, malware, or other destructive codes.

6. Payment and Refunds

Clients pay for any monthly subscriptions and trial periods upfront. Refunds are considered on a case-by-case basis, and Whoa Dude Design reserves the right to deny refunds based on its own self discretion and without notice or liability to Client. If a refund is deemed appropriate, there will be a 25% fee assigned to the remaining billable period. Refund requests during the trial period may result in forfeiture of the Client's right to use materials produced by Whoa Dude Design. Should the Client be granted a refund during a trial period or during the first month of use, Whoa Dude Design retains ownership of all materials that it produced, and the Client is prohibited from using said materials in any way. Whoa Dude Design reserves the right to take appropriate legal actions against the Client for breach of this paragraph.

7. Privacy Policy

By accessing and using the Website, the Client agrees to comply with and be bound by the Privacy Policy of Whoa Dude Design, as well as the terms detailed within it. The Website is hosted in the United States of America. Therefore, accessing the Website from regions outside the United States, such as the European Union, Asia, or other parts of the world, may subject users to different laws, statutes, or regulations regarding personal data collection, use, or disclosure than those in the United States. By continuing to use the Website and transferring data to the United States, the Client explicitly consents to the transfer and processing of their data within the United States. Whoa Dude Design does not intentionally collect or solicit personal information from individuals under the age of 18. In compliance with the United States’ Children’s Online Privacy Protection Act (COPPA), if Whoa Dude Design becomes aware that a person under the age of 13 has provided personal information without parental consent, we will take steps to remove such information from our databases as quickly as reasonably possible.

8. Governing Law and Dispute Resolution

This Agreement and any disputes related to it or the services provided by Whoa Dude Design will be governed by the laws of the State of Wyoming. Legal actions arising from or connected to this Agreement must be filed exclusively in the state courts of Sheridan County, Wyoming, or the United States District Court for the District of Wyoming. By using our services, the Client consents to this jurisdiction and venue. Both parties agree to waive any objections to these courts, such as claims of inconvenient forum or lack of personal jurisdiction. Additionally, Whoa Dude Design and the Client agree to forgo any right to a jury trial and will not participate in any class, consolidated, or representative actions. If litigation is necessary, both parties agree to first attempt to resolve disputes through good faith negotiation or an agreed-upon alternative dispute resolution method before resorting to the courts.

9. Disclaimer

The Website and services of Whoa Dude Design are provided on an "as-is" and "as-available" basis. The Client agrees that their use of the Website and services is at their own risk. Whoa Dude Design expressly disclaims all warranties, either express or implied, in connection with the Website and the Client's use thereof, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Whoa Dude Design makes no warranties or representations about the accuracy, reliability, or completeness of the Website's content or the content of any websites linked to the Website. Whoa Dude Design assumes no liability for any errors, mistakes, or inaccuracies of content and materials, personal injury or property damage of any nature whatsoever, unauthorized access to or use of our secure servers and/or any personal or financial information stored therein, interruption or cessation of transmission to or from the Website, any bugs, viruses, or the like which may be transmitted to or through our Website by any third party, and/or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Website. Whoa Dude Design does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Website, any hyperlinked website, or any website or mobile application featured in any advertising.

10. Limitations of Liability and Indemnification

Whoa Dude Design, including its directors, employees, members, independent contractors, or agents, shall not be liable for any direct, indirect, incidental, consequential, special, or punitive damages, including but not limited to loss of profits, revenue, data, or other damages arising from the Client's use of the Website. The Client agrees to defend, indemnify, and hold harmless Whoa Dude Design and its subsidiaries, affiliates, officers, agents, employees, partners, and independent contractors from any claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising from or related to (1) the Client's use of the Website; (2) breach of these Terms of Use; (3) any breach of the Client's representations and warranties set forth herein; or (4) violation of any third-party rights, including intellectual property rights. Notwithstanding the foregoing, Whoa Dude Design reserves the right, at the Client’s expense, to assume the exclusive defense and control of any matter for which the Client is required to indemnify Whoa Dude Design, and the Client agrees to cooperate with our defense of these claims.

11. Third-Party Services

Client accounts, subscription management, and billing processes for Whoa Dude Design are managed by a third-party service provider, Zoho Billing. This includes handling all aspects of client account creation, subscription options, and processing of payments. By using Whoa Dude Design's services, Clients acknowledge and agree to the management of their account and billing-related activities by Zoho Billing. Whoa Dude Design is not responsible for the internal policies or operational practices of Zoho Billing, but is committed to working with them to ensure a smooth and professional service experience for our Clients.

12. Modification of Website

Whoa Dude Design reserves the right to change, alter, modify, amend, or remove any content or features on the Website at any time and for any reason at its sole discretion. This includes the right to modify or discontinue, temporarily or permanently, all or any part of the Website without prior notice to the Client. Whoa Dude Design shall not be liable to the Client or any third party for any modification, suspension, or discontinuance of the Website or any service, content, feature, or product offered through the Website.

13. Website Availability and Interruptions

Whoa Dude Design does not guarantee that the Website will operate uninterrupted or be available at all times. The Website's operation may be affected by numerous factors beyond Whoa Dude Design's control, such as hardware, software, and other technical issues. The Client acknowledges and agrees that at times the Website may be inaccessible or inoperable for any reason, including, but not limited to, equipment malfunctions, periodic maintenance, repairs, or replacements that Whoa Dude Design undertakes from time to time, or other causes beyond the control of Whoa Dude Design, including but not limited to internet service provider or communications network failures. Whoa Dude Design shall not be liable for any loss, damage, or inconvenience suffered by the Client due to the inability to access or use the Website during any downtime or discontinuance of the Website.

14. Administrative Pause

Whoa Dude Design reserves the right to temporarily pause its services at its discretion, an action referred to as an "Administrative Pause." Such pauses may occur due to various reasons, including but not limited to personal illness, system maintenance, or other operational necessities. During an Administrative Pause, service delivery will be temporarily suspended. The terms and implications of an Administrative Pause will mirror those of a "Client Pause," in which Clients may pause service at any point in their billing period and save the remaining days for later. This means that during an Administrative Pause, similar to a Client Pause, subscription billing may be adjusted or halted. Clients will be notified as soon as possible regarding the commencement and expected duration of any Administrative Pause, along with any relevant details about how this will affect their ongoing projects or subscriptions. Whoa Dude Design is committed to minimizing the impact of such pauses on its Clients and will endeavor to resume normal service operations promptly.

15. User Data

‍Client is solely responsible for all data transmitted to or that relates to any activity Client has undertaken using the Website. Whoa Dude Design shall have no liability to Client for any loss or corruption of any such data and Client hereby waives any right of action against Whoa Dude Design from any such loss or corruption.

16. Electronic Communications, Transactions, and Signatures

The Client consents to receive electronic communications from Whoa Dude Design. The Client agrees that all agreements, notices, disclosures, and other communications that Whoa Dude Design provides electronically, via email or through the Website, satisfy any legal requirement that such communications be in writing. The Client also agrees to the use of electronic signatures, contracts, orders, and other records, and to the electronic delivery of notices, policies, and records of transactions initiated or completed by Whoa Dude Design or via the Website. The Client waives any rights or requirements under any laws in any jurisdiction that might require an original (non-electronic) signature, or the delivery or retention of non-electronic records, or to payments and the granting of credits in any form other than electronic.

17. Showcasing Design Work

Whoa Dude Design reserves the right to display and share any design work created for clients on digital channels, which include but are not limited to the Company's Website, social media platforms, marketing materials, and other promotional activities. This right is exercised to showcase Whoa Dude Design's portfolio and capabilities and is subject to the following conditions:

• Client Consent: Unless otherwise stated, it is assumed that the Client consents to the use of completed work for showcase purposes.
• Confidentiality and Non-Disclosure: In cases where a Non-Disclosure Agreement (NDA) is executed between Whoa Dude Design and the Client, the stipulations of the NDA regarding confidentiality and non-public disclosure will supersede this right. The specific work covered under the NDA will not be displayed or shared publicly.
• Sensitive Information: Whoa Dude Design commits to not disclosing any sensitive or confidential information of the Client that may inadvertently be a part of the design work unless such information is already public or the Client has given explicit permission.
• Timing of Showcase: The Client may request a specific timing for showcasing the work, particularly if the work is related to time-sensitive projects or campaigns. Whoa Dude Design will endeavor to respect such requests whenever feasible.

18. Miscellaneous

The Terms of Use, along with any policies posted on the Website or in relation to the Website, represent the complete agreement and understanding between the Client and Whoa Dude Design. The failure of Whoa Dude Design to enforce any right or provision of these Terms of Use shall not be construed as a waiver of such right or provision. If any part of these Terms of Use is found to be unlawful, void, or unenforceable, that part shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. Nothing contained in these Terms of Use, the Privacy Policy, or anywhere on the Website should be understood as creating a joint venture, partnership, employment, or agency relationship between the Client and Whoa Dude Design.

19. Contact Information

For any inquiries or complaints, please contact Whoa Dude Design at hello@whoadude.design.