Last Updated: March 3, 2012
2. The Site, the Application and the Services
Whimzle enables users to crowd fund any cause or item. On or through our Site and Application, you may be able to: (i) create a "whimzles" of causes you support or items you are in need of; (ii) share “whimzles" with your friends through various social media mechanisms; (iii) receive contributions from friends or strangers to enable your purchase(s) or fundraising; (iv) make monetary contributions to other users’ "whimzles"; and avail yourself of related Services from preferred vendors.
3. Credentials and Personal Information
4. Your Responsibilities.
You are responsible for all use(s) of the Site, Application and any of the Services in connection with of your Credentials, including use by others to whom you have given your Credentials. You may use the Site, Application and Services for lawful, non-commercial purposes only. You may not use the Site, Application or Services in any manner that could damage, disable, overburden, or impair our servers or networks or those of Facebook, Twitter, Google or Amazon or interfere with any other party's use and enjoyment of the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting anything else contained herein, you agree that you shall not (and you agree not to allow any third party to):
- copy, modify, adapt, translate, or reverse engineer any portion of the Site or Application, any content or materials therein or any other portion of the Services;
- remove notices of any copyright, trademark or other proprietary rights contained in or on the Site or in any content or other material obtained via the Services;
- use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Site or Services;
- reformat or frame any portion of the web pages that are part of the Site;
- register accounts by automated means or under false or fraudulent pretenses; or
- You will not use our copyrights or trademarks (including Whimzle, the Whimzles and Logos, Slogans), or any confusingly similar marks, without our written permission
Business uses of our Services
If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Whimzle and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
5. Links to Other Sites.
6. Content You Post or Transmit
As part of the Services, we may offer you the opportunity to upload, submit, post, publish, communicate, distribute or otherwise transmit text, images, hyperlinks and/or other content ("Posted Content"). By accepting or allowing you to submit Posted Content, Whimzle is not obligated to publish, display, transmit or otherwise make your Posted Content available to the public or any third party, and we reserve the right not to do so, in our sole discretion. We are not, however, responsible for any failure or delay in removing Posted Content. In addition:
You are solely responsible for your Posted Content;
You may not post, submit, distribute, transmit or reproduce any Posted Content that infringes, misappropriates or violates the intellectual property, publicity, privacy or other proprietary rights of any third party;
You may not provide any Posted Content that falsely expresses or implies that such Posted Content is sponsored or endorsed by Whimzle;
You may not provide any Posted Content that harasses or advocates harassment of a third party, is threatening, obscene, defamatory, libelous or is otherwise unlawful or promotes or encourages illegal activity;
You may not provide Posted Content as a means of transmitting unsolicited mass mailings or "spamming;"
Your Posted Content may not be pornographic, sexually explicit, feature graphic nudity;
By submitting Posted Content, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, Whimzle, its contractors and the other users of the Site and Services a non-exclusive, irrevocable, perpetual, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, publicly perform, digitally perform, publicly display, and distribute such Posted Content and to adapt, edit, translate, prepare derivative works of or incorporate into other works, such Posted Content.
Whimzle reserves the right to investigate and take appropriate legal action, in its sole discretion, against anyone who violates this provision, including without limitation, removing the offending Posted Content or communication from the Services and blocking access to the Services by such violators.
We do our best to keep Whimzle safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:
- You will not send or otherwise post unauthorized commercial communications (such as spam) on Whimzle
- You will not collect users' content or information, or otherwise access Whimzle, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
- You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Whimzle.
- You will not upload viruses or other malicious code.
- You will not solicit login information or access an account belonging to someone else.
- You will not bully, intimidate, or harass any user.
- You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
- You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
- You will not use Whimzle to do anything unlawful, misleading, malicious, or discriminatory.
- You will not do anything that could disable, overburden, or impair the proper working of Whimzle or affiliated services, such as a denial of service attack.
- You will not facilitate or encourage any violations of this Statement.
8. Copyright Dispute Policy.
Whimzle has adopted the following policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (the "DMCA").
We will: (i) block access to or remove content and material from the Site and/or the Application which we believe, in good faith, to infringe the copyright of a third party; and (ii) deactivate the accounts of and/or discontinue Service to users who repeatedly infringe on others' copyrights on or through the Site and/or Application.
If you believe that material or content residing the Site or accessible via the Application infringes a copyright, please send a notice of copyright infringement containing the following information to our Designated Agent at the address listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials allegedly being infringed;
Identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Whimzle is capable of finding and verifying its existence;
Your contact information, including mailing address, telephone number and, if available, email address;
A statement that you have a good faith belief the material is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and you are authorized to make the complaint on behalf of the copyright owner.
Whimzle's Designated Agent for Notification of Claimed Infringement may be reached at the following address: firstname.lastname@example.org or by phone at 702-591-3963.
9. Our Intellectual Property.
Except for your Posted Content and the Posted Content of other users, all of the content available on or through the Site and Application, including without limitation, text, photographs, graphics and audiovisual content, is owned by us and our licensors and is protected, as applicable, by copyright, trademark, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Site and the Application and any underlying technology or software used in connection with the Services contain Whimzle's proprietary information. We give you permission to use the aforementioned content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting you to access to the Site or use the Application. You may print, download, and store information from the Site or Application for your own convenience, but you may not copy, distribute, republish (except as permitted in this paragraph), sell, or exploit any of the content, in whole or in part, for any commercial gain or purpose whatsoever except as expressly provided herein. Except as is expressly provided herein, Whimzle and its suppliers do not grant you any express or implied rights, and all rights in the Site and Application not expressly granted to you by Whimzle, are retained by Whimzle.
10. Purchases, Payment and Fund Withdrawal Policies
In connection with your Purchases, the total amount that you elect to contribute, minus our Service Fee, shall be available for withdrawal by and only by the designated beneficiary or contribution recipient (the "Recipient"), one-hundred and twenty (120) hours following the time of Purchase and at any time thereafter (not to exceed 10 years). Whimzle shall notify the Recipient each time additional funds become available for withdrawal by said Recipient, and shall provide Recipient with withdrawal instructions and options.
You agree that the beneficiary will not receive any interest or dividends received on Whimzle Purchases. Your use of the Services affirms that you irrevocably transfer and assign to Whimzle any ownership right in any interest earned on funds. All taxes that are resultant of receiving contributions are the sole responsibility of the end user to audit and report. Whimzle is in no way responsible for local or federal taxes associated with raising or receiving funds for individual users or companies.
11. Disclaimer of Warranties.
WE PROVIDE THE SITE, THEN APPLICATION AND THE SERVICES "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE." WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SITE OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SITE OR SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WHIMZLE MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE BY OR THROUGH THE SITE OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. WHIMZLE DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES, SOFTWARE OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
12. Liability Limitations.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE APPLICATION. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "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."
15. Electronic Contracting and Notice.
16. Entire Agreement.
17. Choice of Law and Dispute Resolution.