Last Updated: March 3, 2012

The following terms and conditions constitute an agreement between you and Whimzle, Inc ("Whimzle," "we" or "us"), a Delaware corporation and the operator of www.Whimzle.com(the "Site") and the Whimzle application (the "Application"). This agreement (the "Terms of Use") governs your use of the Site, the Application and all services available on/through or in connection with the Site or Application (the "Services").

BY USING THE SITE, APPLICATION AND/OR THE SERVICES, YOU SIGNIFY THAT YOU AGREE TO THE TERMS OF SERVICE, including that you consent to the information practices disclosed in our Privacy Policy, which is incorporated herein by reference, and that you consent to resolve in the State of Delaware any dispute that you may have with us, the Site, Application and/or Services. Please note that we offer the Site "AS IS" and "AS AVAILABLE," without warranties.

1.      Changes to the Terms of Use

We may change these Terms of Use at any time, as we reasonably deem appropriate. Upon any change in the Terms of Use, we will post the amended agreement on the Site with notice of the changes to the document for your review. Your continued use of the Site, the Application and/or the Services following such posting or notification shall constitute your affirmative acknowledgement of the modification and agreement to abide and be bound by the Terms of Use, as amended. If at any time you choose not to accept the Terms of Use, including following such posting or notification of any modifications hereto, then you agree not to use the Site, the Application and/or the Services.  Should you have any questions or concerns please do not hesitate to contact us at support@whimzle.com

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.

To actively engage with the Site or Application, you must have an active, valid Facebook, Twitter, Google or OpenID account.  In addition to these Terms of Use, use of the Services is governed by the Facebook, Twitter, Google Principles and Policies (accessible at http://www.facebook.com/home.php?ref=home#!/terms.php , https://twitter.com/tos, https://www.google.com/intl/en/policies/terms/ and expressly incorporated herein by reference). Please review these terms and conditions carefully before using any of the Services.

We may from time to time add new services to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one of the existing Services. Information about the new services will be included on the Site, and the users of new services will be governed by the Terms of Use. You agree that Whimzle will not be liable to you or any third party for any suspension or discontinuation of any of the Services.

3.     Credentials and Personal Information

Your Social Services  username and password serve as your credentials ("Credentials") for accessing the Whimzle Services. You are responsible for keeping your Credentials confidential and for notifying us if your password has been hacked or stolen by emailing us at support@whimzle.com.  In order to utilize certain of our Services, you must provide us with access to limited portions of your Social account(s), including certain personal information. The Whimzle Privacy Policy explains the information practices that apply to this and other personal information we have about you, as well as any choices you can make about the ways this information is used. Please review it carefully.

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):

1. 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;
2. 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;
3. 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;
4. reformat or frame any portion of the web pages that are part of the Site;
5. register accounts by automated means or under false or fraudulent pretenses; or
6. You will not use our copyrights or trademarks (including Whimzle, the Whimzles and Logos, Slogans), or any confusingly similar marks, without our written permission

We may take any legal action and implement any technical remedies to prevent the violation of this provision and to enforce the Terms of Use.

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.

The Site, the Application and all communications transmitted via the Services may feature advertisements or contain links to other websites ("Third Party Sites" or Preferred Vendors).  Any links to a Third Party Site are provided solely for your convenience.  Whimzle does not endorse, sanction or verify the accuracy or ownership of the information contained in any advertisements, the content of any Third Party Site or any products or services advertised on a Third Party Site.  If you decide to click on a link to a Third Party Site or otherwise navigate to a Third Party Site, you do so at your own risk. Once you access a Third Party Site, you may no longer be protected by these Terms of Use and may be subject to other terms and conditions of such Third Party Site. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Site to which you navigate. Concerns regarding a Third Party Site should be directed to the Third Party Site itself. Whimzle bears no responsibility for any action associated with any Third Party Site.  Moreover, Whimzle does not imply an affiliation with any Third Party Site.

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;

You understand and agree that Whimzle may delete any Posted Content that in our sole judgment violates these Terms of Use or is otherwise offensive, illegal violates the rights of, harms or threatens the safety of a third party;

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.

7.Safety

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:

1. You will not send or otherwise post unauthorized commercial communications (such as spam) on Whimzle
2. 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.
3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Whimzle.
4. You will not upload viruses or other malicious code.
5. You will not solicit login information or access an account belonging to someone else.
6. You will not bully, intimidate, or harass any user.
7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
8. You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
9. You will not use Whimzle to do anything unlawful, misleading, malicious, or discriminatory.
10. 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.
11. 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: support@whimzle.com  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

Your contribution of funds towards any “Whimzles” requested by other users shall constitute our sale and your purchase (a "Purchase") of the Whimzle Services; in connection with all Purchases you elect to make on/through the Site or Application, payment is due and payable to Whimzle immediately upon sale. Payment for all Whimzle Purchases is processed by or through “Amazon Payment Services¨ ("Amazon") (the third party payment processing service with which we contract), and in additional to these Terms of Use, all Whimzle Purchases are subject to Amazon's terms and conditions (accessible at https://payments.amazon.com/sdui/sdui/helpTab/Personal-Accounts/User-Agreement-Policies/User-Agreement and expressly incorporated herein). In accordance therewith, immediately upon Purchase, you authorize Amazon to debit your designated account for the total cost of the Purchase, inclusive of Processing Fees (as defined below) on Whimzle's behalf, and you agree to be responsible for payment in full for all such charges.  All orders are subject to a six percent (6%) service fee (the "Service Fee"), which shall be automatically deducted from all fund donations and retained by Whimzle. In additional, Amazon may charge a processing fee (the "Amazon Processing Fee") to process credit cards. Under no circumstances whatsoever shall we provide and you are not entitled to a refund of any Service Fees, Amazon Processing Fees or any portions thereof. Applicable sales and/or use tax, if any, will be charged on all Purchases.  We reserve the right to modify our payment methods at any time. You warrant and represent that all payment and billing information you provide to Whimzle and/or Amazon is and will be true, accurate and complete. All Purchases are subject to payment verification.

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."

13.   Termination.

We may terminate and/or suspend your registration and/or access immediately, without notice, if there has been a violation of the Terms of Use, Privacy Policy or any other policy or terms posted on the Site, by you or by someone using your Credentials. Whimzle shall not be liable to you or any third party for any termination of your access to the Site and/or the Application. You may terminate our access to your Facebook, Twitter, Google or Amazon account at any time by logging in to your Account and updating your application permission settings. You may contact Whimzle to request we delete your information at any time by contacting us at: support@whimzle.com .  Sections 7-13 and 16-17 shall survive any termination or expiration of the Terms of Use.

14.   Indemnification.

Upon a request by us, you agree to defend, indemnify, and hold harmless us, our members, employees, contractors, officers, directors, agents, parent, other affiliated companies, and suppliers, from all liabilities, claims, demands and expenses, including attorney's fees, made by any third party that arise from or are related to (a) your access to the Site, (b) your use of the Application or Services, or (c) the violation of the Terms of Use by you or any third party using your Credentials of any intellectual property or other right of any person or entity. The foregoing indemnification obligation does not apply to liabilities, claims and expenses arising as a result of our own gross negligence or intentional misconduct.

15.   Electronic Contracting and Notice.

Your affirmative act of using the Site, the Application or any of the Services constitutes your electronic signature to the Terms of Use and your consent to enter into agreements with us electronically.

16.   Entire Agreement.

The Terms of Use and any supplemental terms, policies, rules and guidelines posted on the Site, including the Privacy Policy constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Whimzle to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

17.   Choice of Law and Dispute Resolution.

This agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of Delaware as applied to contracts made and to be performed entirely within Delaware, without giving effect to the State's conflicts of law statute. Any controversy, dispute or claim arising out of or related to the Terms of Use, your use of the Site, the Application or any of the Services shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in the State of Delaware pursuant to the rules of the American Arbitration Association. The arbitration tribunal shall consist of one arbitrator. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. The parties agree that the arbitrator shall have the authority to impose equitable and injunctive relief as well as to award monetary relief, as the arbitrator deems appropriate.

18.   Assignment.

We may assign this agreement at any time to any parent, subsidiary or any affiliated company or as part of the sale to, merger with or other transfer of Whimzle to another entity. You may not assign, transfer or sublicense the Terms of Use to anyone else and any attempt to do so shall be null and void.

19.   Eligibility.

You must be 18 years of age or older, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to use the Site, the Application and Services. If you are under the age of 18 or the applicable legal age in your jurisdiction, you can use the Site, the Application or Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to the Terms of Use. If you do not qualify under these terms, do not use the Site, the Application or Services. Use of the Services is void where prohibited by applicable law, and the right to use the Services is revoked in such jurisdictions. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into the Terms of Use and to abide by all of the terms and conditions set forth herein. The Services are administered in the United States and intended for United States users only; any use outside of the United States is at your own risk and you are responsible for compliance with any local laws applicable to your use of the Services or the Site.