1. Your Acceptance
This is a formal agreement and it governs your participation in and/or use of those services or benefits available through DigitalCandy, Inc (dba WilyFish) (Hereinafter “WilyFish” or “WF”. In this Agreement, “Company”, “us,” “we” or “our” all refer to WF. By participating in or using the services or features of the Program, or by activating an “Agree” button associated with a service, or setting up an account, you are agreeing to be bound by the terms of this Agreement. If you do not wish to become bound by this Agreement, do not access the WilyFish.com or WilyFish.co websites or the mobile phone applications (“Site” or “Website” or “App” or “Application”) or use any of our custom / white glove services.
2.2. Website Access
A. We hereby grants you permission to use the Website as set forth in this Terms of Service, provided that: (i) your use of the Website as permitted is solely for your use; (ii) you will not copy or distribute any part of the Website in any medium without WF’s prior written authorization; (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Service.
B. In order to access some features of the Website, you will have to create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of your account. Failure to notify us of such a breach is a violation of this contract and breach of contract. Although we will not be liable for your losses caused by any unauthorized use of your account, you may be liable for our or third parties losses or others due to such unauthorized use.
C. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Website in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes.
3. Search & Notification
We will automatically search for such things as we are requested across the Internet and provide a listing of where this content is found. The results will be available to you within the application and may be saved to a folder or reports. If you have requested custom searches, then the results will be available to you in a folder viewable within your account and we will provide you the results via a PDF and/or and Excel report as you request. We do not guarantee that all locations of content will be found. We offer a service where you may choose to have notification letters sent to those persons or entities whom you believe are infringing or hosting infringing material. We make no guarantees that the chosen receiver of the correspondence will receive and respond to the correspondence. We, in our sole discretion, reserve the right to cancel access to this service if we believe it is being abused by you.
4. Custom Searches
The system has been trained to find trademarks. It is however capable of searching for any other images and cross indexing them with words or other data on a case by case basis. Each search however must be designed on a case by case basis as well and as such the pricing for such searches will be provided in a written proposal. proposals shall only be valid when in writing and signed by an authorized representative of WF.
5. Intellectual Property Rights
The content on the Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Mimes,” “Memes” or “Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to WF, subject to trademark and copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. We reserve all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein or in your custom proposal. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the Content therein.
6. User Activities
A. In some instances we are a service provider and as such claim safe harbor under the Digital Millennium Copyright Act. In particular, if you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by either uploading your copy of the content and claiming ownership or by providing our Copyright Agent (See below) with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. You understand that when using the Website, you will be exposed to content from a variety of sources, and that WF is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against WF with respect thereto, and agree to indemnify and hold WF, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
C. WF permits you to link to materials on the Website for personal, non-commercial purposes as well as licensed herein.
7. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WF, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. WF MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
8. Limitation of Liability
IN NO EVENT SHALL WF, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER THROUGH NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL OR MALICIOUS ACTS OR OTHERWISE, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WILYFISH WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT WF SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Website is controlled and offered by us from its facilities in the United States of America. We make no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold us harmless, our parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that one of your User Submissions caused damage to a third party or (v) any claims that you placed up for sale and or sold WF which you did not have a right to sell. This defense and indemnification obligation will survive these Terms of Service and your use of the Website.
10. Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Website without your parent’s permission — there are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted here under, may not be transferred or assigned by you, but may be assigned by us without restriction.
You agree that: (i) the Website and services shall be deemed solely based in Washington, D.C.; and (ii) the Website shall be deemed a passive website that does not give rise to personal jurisdiction over WF, either specific or general, in jurisdictions other than Washington, D.C. These Terms of Service shall be governed by the internal substantive laws of Washington, D.C., without respect to its conflict of laws principles. Any claim or dispute between you and WF that arises in whole or in part from the Website shall be decided exclusively by a court of competent jurisdiction located in Washington, D.C.. These Terms of Service and any other legal notices published by WF on the Website, shall constitute the entire agreement between you and WF concerning the Website. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and WF failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. WF reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND WF AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU AGREE THAT IF A COURT OF COMPETENT JURISDICTION WISHES TO AWARD DAMAGES AGAINST WF THAT APPROPRIATE AND REASONABLE LIQUIDATED DAMAGES, IN LIEU OF SUCH AN AWARD IS $500 INCLUDING ALL SUCH DAMAGES, COSTS, ATTORNEY’S FEES AND ANY OTHER MONETARY AMOUNT.
13. Third party claims
Please see CONTACT WILYFISH for non-legal issues. If there are legal issues, please use at least two of the methods listed therein in order to insure receipt.
Copyright Agent may be used as pertaining to DMCA notifications and other legal complaints:
Greenberg & Lieberman, LLC
1775 Eye St. NW Suite 1150
Washington, D.C. 20006
Third parties that claim that any of the material on the WilyFish.com website is infringing their right must submit a claim of infringement which includes:
1. Name of Company or Person who has the right to make a claim against the intellectual property
2. Your name and how you are associated with the above company
3. Your and the company’s contact information (including email address)
4. List of intellectual property right(s) at issue and jurisdictions in which registered
5. If certain affiliates or partners are permitted to use the intellectual property, list all company names in your letter.
6. Include the following statement: “I have a good faith belief that use of the above listed intellectual property are not authorized by the owner or its agent, nor is such use otherwise permissible under law.”
7. Include the statement: “I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.”
8. Your signature and BLOCK PRINTED FULL NAME AND TITLE.
Content Review. After we have received a proper complaint, both the submitter of the complaint and CLIENT will be sent an email with a copy of the complaint. CLIENT shall be given five (5) days to respond and provide a counter notification.
Counter Notifications. The administrator or the provider of affected content may make a counter notification pursuant to §§512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by fax or regular mail — not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is not infringing the copyrights of others. Accordingly, we suggest that you first contact an attorney. To expedite our ability to process your counter notification, please use the following format (including section numbers):
1. Identify the material that we have removed or to which we have disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Luxembourg, and that you will accept service of process from the person (or their agent) who provided notification under subsection (c)(1)(C).
3. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled and will no longer be shown.”
4. Sign the document and send it to us at the above address as well as via email or fax.
We strive to review all claims within ten (10) business days of when the complaint was received. Review will be undertaken by an appropriate member of our staff trained in intellectual property matters. We will issue our decision to both you and the Client. In all likelihood we will pull down the alleged offending work if there is a reasonable basis for Complainant’s basis to be true if only to preserve our DMCA safe harbor rights.
You, the Client, agree that if the decision is made to remove the Content from our Site that you will not hold us liable for pulling the material down under any circumstances. You also understand that we will be required to provide your information to the Complainant.
We will, in appropriate circumstances, terminate repeat infringers. If you believe that a user of our Site is a repeat infringer, please follow the instructions above to contact us and provide information sufficient for us to verify that the user is a repeat infringer. If we have documented three (3) infringements then the user will not be allowed to upload further images to the site.
This Privacy Statement discloses the privacy practices for Digital Candy.com (“Digital Candy.com”, “We” or “Us”) and how it treats the information that Digital Candy.com collects and receives, including information related to your past use of Digital Candy.com products and services. This policy does not apply to the practices of companies that Digital Candy.com does not own or control, or to people that WilyFish.com does not employ or manage.
1. The information collected by WF.
2. Communications from WF
3. How information collected by WF is used.
4. Correction/Updating Personal Information
5. Opting Out
6. Terminated WF Accounts
7. Use of the WF Website by Persons Under Age 13
8. Linking to Third Party Websites
9. Users Must Keep Their Passwords Private
10. Changes to Our Privacy Statement
11. Final Statement
1. Information Collected by WF.
We will not knowingly use information collected on this website to others in ways different from what is disclosed in this statement. WF collects information from our users at several different points on our website.
For purposes of this Privacy Statement, “Personally Identifiable Information” refers to information that can directly identify an individual; for example, such information may include an individual’s name, mailing address, phone number or email address.
1.1 Information that Is Automatically Collected
We use IP addresses, with the help of a business partner, to analyze trends, administer the website, track users’ movements, and gather broad demographic information for aggregate use. IP addresses are not linked to Personally Identifiable Information.
1.2 Information that Is Collected by Cookies
1.3 Information that Is Actively Submitted to WF
Registrations and Orders. In order to register a domain name or order services from this website, a user must create an account and complete a registration process. During the account creation process, a user must provide contact information (such as name and email address) so that we can stay in touch with our users. This information is also used to fulfill order and registration requests. To pay for a domain name registration or for other service ordered, a user must provide contact information (such as name and shipping address) and financial information (such as a credit card number and its expiration date). This information is used for billing purposes, with the help of our business partner, and to fill users’ orders. If we have trouble processing an order, this contact information is used to get in touch with the user.
2. How Information Collected by WF Is Used
Demographic Information. We will NOT share aggregated demographic information with our partners and advertisers. We use Personally Identifiable Information (such as your name, telephone number or email address) to communicate with our users when they have questions, concerns or comments about their accounts or the services that we provide. If you contact us, we may or may not delete your emails or voicemails to us.
Information Shared With Third Parties. We share information with third parties as required by ICANN and in order to give our customers access to a great variety of services. Specifically, we may do the following:
Submit the name, postal address, e-mail address, and phone numbers associated with the registrant, administrative, technical and billing contacts of a domain name to the appropriate Registry or registration database. This information is included in a publicly available ‘Whois’ database, in accordance with ICANN rules. This sharing of information is required by ICANN rules if you register a domain name through WF.
3. Use a credit card processing company to bill users for goods and services. These companies do not use Personally Identifiable Information for any use other than credit card processing; however, we will not be responsible or liable for use of the information required by credit card companies in contravention of their policies, contractual obligations or general good business procedures.
Share the publicly available domain contact information submitted by our users for inclusion in the Whois database with third parties. We do not control the use of this Personally Identifiable Information by third parties.
Sale or Transfer of Digital Candy.com. If all or a portion of WF’s products or services are transferred, sold, merged, ceases operations, goes bankrupt, or is otherwise involved in a transaction where the ownership or management of WF is changed (individually or collectively, a “Transaction”) then your Personally Identifiable Information or other user information may be transferred or assigned to a third party as part of the Transaction.
4. Correction/Updating Personal Information
Users must provide accurate and correct contact information (name, postal address, e-mail address, phone number) for their domain name(s) Registrant, Administrative, Technical and Billing contacts, which will be listed in a publicly accessible ‘Whois’ database, in compliance with ICANN rules. If a user’s Personally Identifiable Information changes (such as a zip code), or if a user no longer desires WF’s services, we will provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done under online account management (on your own) or by emailing our user Support Group for assistance.
5. Opting Out
Users are provided an opportunity to “opt-out” of having their information used for purposes not directly related to the services they request. Users who no longer wish to receive our newsletter or promotional materials from us may opt-out of receiving these communications by replying and typing “unsubscribe” in the subject line in the email or email your request to Privacy@DigitalCandy.com or Privacy@wilyfish.com.
6. Terminated WF Accounts
If your account is terminated or cancelled (regardless of whether it was voluntary), all of your Personally Identifiable Information will remain on our servers. We retain and use your Personally Identifiable Information as necessary to enforce our policies or to address contractual issues and may contact you for future marketing or promotional purposes.
Stevan Lieberman, Esq
Greenberg & Lieberman
1775 I St., NW Suite 1150
Washington, DC 20006
The Customer may obtain access to any Contact information and other information by contacting us;
Contact Information is collected for the purpose of fulfilling this Agreement and for present and future marketing and commercial purposes;
You, if you are based in Europe, in association with GDPR, and possibly other countries may have the right to ask us to modify, delete or provide your personal information to you. Please log into your online panel and choose the appropriate option or feel free to contact us as the above to request the same.
7. Use of the WilyFish.co(m) Website by Persons Under Age 13
This website is not intended for use by anyone under the age of thirteen (13), and any individual under such age should not provide us with Personally Identifiable Information. We do not knowingly contact, market to, solicit, collect or use Personally Identifiable Information from or about any individual under the age of 13. It is possible that by fraud or deception we may receive information pertaining to children under 13. If we are notified of that we have personal information regarding a person under the age of 13, as soon as we reasonably verify the information, we will either obtain parental consent or otherwise delete the information from the account and/or service. However, the information may remain on a log in our servers. If you want to notify us of our receipt of information by children under 13, please do so by emailing us at: Privacy@WilyFish.com.
8. Linking to Third Party Websites
This website contains links to other websites. Please be aware that we are not responsible for the privacy practices of such other websites. We encourage our users to be aware when they leave our website and to read the Privacy Statements of each and every website that collects Personally Identifiable Information. This Privacy Statement applies solely to information collected by this website.
9. Users Must Keep Their Passwords Private
Users are required to keep their account passwords confidential and to not share this information with others. If you choose to reveal or share your password and WF account name, we are unable to guarantee the security of your account.
10. Changes to Our Privacy Statement
This Privacy Statement may change, and use of information that we gather now is subject to the Privacy Statement that is in effect as of the time of use. You are responsible for periodically checking our Privacy Statement. You may opt-out of any posted change to our collection, use or disclosure of your personal information by sending an e-mail to Privacy@WilyFish.com. If we make minor changes to this Privacy Statement, the changes will be immediately effective upon posting the revised Privacy Statement to the website. If we make material changes to this Privacy Statement or in how we will use or collect your Personally Identifiable Information, we will prominently post a notification on our website of the changed Privacy Statement ten (10) days prior to implementing the change. The date at the bottom of this Privacy Statement is the date that the Privacy Statement is effective.
Rev. May 29, 2019