Date of Last Revision: 11.20.2011
The Short Version
Kachingle provides two services: One to owners of websites or blogs (whom we refer to as “Site Owners”) some of whom put one or more Kachingle Medallion widgets on their sites to invite contributions from individual users of our service (whom we refer to as “Kachinglers”) and others of whom have a Kachingle Medallion widget placed at the top of their site in the web browser header, which can be seen by Kachingle users who have installed the Kachingle Anything! browser extension; and one to Kachinglers, whose monthly contributions to their Kachingle account are distributed among the sites they have chosen to Kachingle. The term “kachingling” is the tracking of a Kachingle-enabled site selected by a Kachingler for the purpose of distributing their monthly contribution based on the current Kachingle Algorithm.
- Because our service involves the exchanging of money, all users of our Service are required to be 18 years of age or older.
- You are responsible for activity under your account and for complying with these Terms.
- If you are a Site Owner, you are responsible for the content of any site where you place a Kachingle Medallion, and you may not alter the Kachingle Medallions.
- If you are a Kachingler and you don’t Kachingle any sites but continue to pay monthly contributions, your contributions will accumulate in your Kachingler account because Kachingle will not know which Site Owners to give your contributions to. In that case, Kachingle will try for 6 months to reach you, and if unsuccessful, your contributions will be donated to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
- If you are a Site Owner and you don’t claim payments made to you within a reasonable timeframe, and your payments have still not been claimed after at least 180 days of reasonable efforts by Kachingle to reach you during which time your payments have still not been claimed, or if you have notified us in writing that you are rejecting your payments for some reason, then collected monies will be donated to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
- If you are a Site Owner, we will need taxpayer information in order to make payments to you, once you reach the $100 threshold.
The Long Version
We want you to use our Service. Please note that by accessing or using any part of it, you must agree to become bound by these Terms. BY CLICKING THE “I AGREE” BUTTON OR BY USING THE SERVICE, YOU AGREE TO THESE TERMS. If you are using the Service on behalf of an entity, you represent that you have the authority to bind such entity to these Service Terms, and “you,” (and its derivations), Site Owner (as applicable), and “user” refers to such entity. If you do not have such authority or otherwise do not agree to these Terms, you are not authorized to use the Service and you must refrain from pressing the “I AGREE” button.
Because our Service involves financial transactions, it is intended for individuals 18 years old or older, whether acting on their own behalf, or as authorized employees or representatives of a corporation or other business entity.
2. YOUR KACHINGLE ACCOUNT
If you publish a website or blog and you install a Medallion on your website or blog, or Kachingle has added the URLs of your website or blog to the list of Kachingle Anything! websites and blogs, which will cause the Kachingle Anything! Medallion to appear at the top of the browsers of visitors to your website or blog, and you accept payments from Kachingle, then you are a “Site Owner”. If you are an individual visitor to a Site Owner’s site, and have already registered with Kachingle, you are a “Kachingler.” You can be both a Site Owner and a Kachingler.
If Kachingle registers your website or blog as a Kachingle Anything! site, and you notify Kachingle that you are not willing to participate in the Kachingle service, Kachingle will, at your direction, pay you whatever money has been collected from your Kachinglers via either PayPal or a check mailed to you (without deducting Kachingle's usual processing fees), remove your site from its system and terminate your Kachingle account.
When you, the Site Owner, cancel your Kachingle account, you also have the option to abandon the money that your Kachinglers have contributed, in which case it will be given to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
Registering as a Site Owner involves creating an account on the Services (“Kachingle User Account”) and consists of providing contact information (including email address), and selecting a password, Display Name (the name associated with your Kachingle User Account and displayed on the Service to represent you), and if you wish, an avatar (the picture icon that is associated with your account). Each Site Owner must also designate the Paypal account or other financial vehicle to which Kachingle will pay you when you have reached the payment threshold (“Pay-Out”). Site Owners or Kachingle will also create one or more Medallion widgets to be placed on Site Owner web pages. Kachingle may choose to ask you for more information as the Service evolves.
You may also become a Site Owner and start receiving contributions from your users as a result of one of your users asking Kachingle to add your site to Kachingle using Kachingle’s “Kachingle Anything” technology. In this scenario, your website’s URLs are added to the Kachingle Anything! database, so that Kachinglers will see the Kachingle Anything! widget in their web browser frame when they go to your site, and that widget will allow that Kachingler to turn on Kachingling for your site, so that Kachingle can keep track of that user’s visits to your site, and use that information to determine how much of their monthly contribution will be allocated to you, the Site Owner. As a Kachingle Anything! Site Owner, in order to start receiving payments from your Kachinglers, you do not need to create an account on Kachingle, but rather, you only need to provide Kachingle with your PayPal email address.
Registering as a Kachingler involves creating a Kachingle User Account, providing contact information (including email address), and selecting a password, Display Name, and if you wish, avatar (the picture icon that is associated with your account). You may also register using your Facebook account, which automatically provides Kachingle with your Display Name, email address and avatar. Each Kachingler must also designate the source from which you make your monthly payment for the Service (“Pay-In”). Kachingle may choose to ask you for more information as the Service evolves.
You may choose to use, as your Display Name, your real name or a made up name, and you may choose any avatar, provided: (i) the name or avatar is not that of another person with the intent to impersonate that person; (ii) the name or avatar is not subject to any rights of a person or company other than you without appropriate authorization; or (iii) the name or avatar is not offensive, vulgar or obscene, or otherwise a violation of these Terms. Kachingle shall be the sole arbiter of these restrictions.
Objectionable names and/or avatars may be reported to Kachingle via the “Help” link at the top of any Kachingle page, the “Contact” link at the bottom of every page, via the “Report a Problem” link in a Site Medallion, or via an email message to firstname.lastname@example.org. Kachingle reserves the right to refuse the registration of, or cancel, a Kachingle User Account at its sole discretion without prior notice to or approval from the user. However, Kachingle cannot and does not guarantee that Display Names and/or avatars will not be offensive or objectionable to you, and Kachingle is not responsible for any harm or damage to you based on any user’s selection of a Display Name and/or avatar.
Upon your proper registration with the Service, Kachingle gives you the limited, non-exclusive right to access and use the Service only in accordance with these Terms.
4. USER CONDUCT
In connection with your use of the Service, you agree to all of the following:
a. You are responsible for any activity that occurs under your account.
b. You are responsible for keeping your password secure.
c. You must not abuse, harass, threaten, impersonate or intimidate other Kachingle users or anyone else.
d. You may not use the Service for any illegal or unauthorized purpose. International users agree to comply with all laws in effect in the jurisdiction in which they live, regarding their use of the Service, including online conduct and acceptable content.
e. You must not modify, adapt, hack or otherwise alter the Kachingle Medallion or the Kachingle Site or the Service, or attempt to gain unauthorized access to the Kachingle Site or the Service, including by disablement or circumvention of any technological measure employed by the Kachingle Site or Service.
f. You must not modify another website so as to falsely imply that it is associated with Kachingle or the Service.
g. You must not transmit unwanted email to any Kachingle users (“Spam”).
h. You must not transmit any worms or viruses or any codes of a destructive nature through the Network or any sites associated with any Kachingle User Accounts, or otherwise use the Service in any manner which could damage, disable, overburden or impair the Kachingle Site or Service.
i. You must not violate any laws in your jurisdiction (including but not limited to copyright laws).
j. You must not use the Service or the Kachingle Site to create or modify a competitor product or service.
k. You must not frame or mirror the Kachingle Site or Service on any other service or wireless or Internet-based device, except with Kachingle’s prior express permission.
If you violate any of these rules for user conduct, Kachingle has the right to terminate your access to the Service.
The Service involves the placement of Kachingle Medallions on third party sites. You understand and agree that Kachingle may not have reviewed, and cannot review, all of the material, including computer software and any content, made available through the websites and web pages on which the Kachingle Medallion resides. Further, Kachingle does not represent or imply that it endorses any such website or webpage.
You are solely responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content, and with respect to your dealings and transactions with any Kachingle users, Site Owners, or any third party. KACHINGLE DISCLAIMS ANY RESPONSIBILITY OR LIABILITY OF ANY KIND FOR ANY HARM OR DAMAGE RESULTING FROM YOUR USE OF KACHINGLE-ENABLED SITES.
5. SITE OWNERS’ USE OF KACHINGLE MEDALLION
a. Placement / Modification of Medallion:
i. Medallion: A Medallion has a unique tracking code. You may (1) duplicate and install it with the same tracking code throughout your website, blog or service or even across sites (“Your Site”), or (2) use separate Medallions with unique tracking codes for different pages or sections of Your Site. In the first case, Kachinglers visiting Your Site would only have to select the Medallion once to become a contributor and their visits would be counted (“Kachingled”) each day that they visit a page with this Medallion. In the second case, Kachinglers visiting Your Site would have to select each Medallion individually, and their visits would be counted (“Kachingled”) separately for each Medallion they encounter on your site.
ii. One Per Page: However you choose to install Kachingle Medallions, you may place only one Medallion per page.
iii. No Modification: You may not cause, permit or authorize any modification of the Kachingle Medallion, which includes separation into component parts, modification of the way the Medallion looks or behaves, nor creation of derivative works.
iv. No Misguiding: The name of your site you choose to assign to your Medallion must be consistent with the actual webpage where it is displayed, and must not be an attempt to mislead users or visitors into thinking your site is a different site, or that said Medallion is associated with a different site.
b. License and Restrictions:
i. It’s Your Site: If you install the Kachingle Medallion on your site, you warrant that you (or your company if you are using the Service as a representative of your company) own or have licensed all rights to your site, including the content on your site.
ii. It’s Our Medallion: All rights, title, and interest in and to the Kachingle Medallion, including all intellectual property rights therein, are the exclusive property of Kachingle. You acknowledge and agree that the Kachingle Medallions are non-exclusively licensed to Site Owners as part of the Site Owners’ permitted use of the Service, and not sold to you or nor may it be used for any other purpose. There is no cost to license the Medallion, but your use of the Medallion is subject to these Terms, and you may only use and display the Medallion while you have a valid Kachingle User Account.
iii. Breaching the Agreement: Kachingle reserves the right to withhold payment or charge back your account due to any breach of these Terms by you, pending reasonable investigation by Kachingle.
c. Payment to Site Owners:
i. Pay-Out Calculation: Site Owners receive 85% of the contributed revenue (monies contributed by Kachinglers and distributed to the Kachingle accounts of Site Owners). Kachingle retains the remaining 15% to cover the cost of processing payments (we pay all related PayPal fees) and our commission. The payments by Kachinglers to Site Owners are based on an algorithm that counts Kachinglers’ activity to your Site (“Algorithm”). Kachingle pays for all payment processing fees associated with collecting money from Kachinglers (Pay-In) as well as distributing money to Site Owners (Pay-Out), with the exception of currency conversion fees, which are often paid by the Kachingler per the rules of payment processing companies such as Paypal. Kachingle reserves the right to change the percentage payment at anytime to another percentage or a percentage that depends on other variables than revenue.
ii. The Algorithm May Change: Kachingle reserves the right to change the Algorithm, or implement multiple Algorithms at any time without notice. For details about the current Algorithm(s) in place, please visit the Help and FAQ pages. Feedback on the Algorithm is welcomed – please visit the Help link at the top of any Kachingle.com page to contact Kachingle.
iii. Frequency/Minimum Pay-Out: Unless otherwise agreed to by the parties in writing (including by electronic mail), Kachingle shall send monetary payments (“Pay-Out”) to Site Owners approximately two months after the Kachingle Medallion is installed on your site. The minimum Pay-Out shall be $0.01 (1 U.S. cent) per Medallion (including transaction and other fees which Kachingle absorbs). You will not receive a Pay-Out until your account balance is greater than this minimum Pay-Out level. Kachingle reserves the right to change the minimum Pay-Out without permission or notice. Pay-Outs will be made via PayPal unless Site Owner makes an agreement with Kachingle to be paid by check. In that case, the minimum Pay-Out shall be $100 per Medallion, and Sites will not be paid by check until their Medallion’s balance reaches $100.
iv. If Terminated: In the event that your account is terminated, Kachingle shall pay your earned balance no later than approximately ninety (90) days after the end of the calendar month in which your account is terminated.
v. Tax Forms: You are solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation with the Service.
vi. Changing Pricing: Kachingle may change its payment structure, rules and policies at any time. If you dispute any payment made by Kachingle, you must notify Kachingle in writing within thirty (30) days of any such payment; failure to so notify Kachingle shall result in the waiver by you of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Kachingle. No other measurements or statistics of any kind shall be accepted by Kachingle or have any effect under these Terms.
vii. Inactive Accounts: It is your responsibility to maintain updated and correct contact information about your Kachingle User Account. If Kachingle is unable to pay or deliver Pay-Outs that are owed to you, because your Kachingle User Account is Inactive (as defined below), then you acknowledge and agree that Kachingle will donate your undeliverable money to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
“Inactive” means (unless provided otherwise under applicable law) that, based on Kachingle’s records: (a) for a period of 180 days or more you have not logged into your Kachingle User Account, and (b) Kachingle has reasonably attempted to but has been unable to reach you and/or to pay your Pay-Out as provided in these Terms, over a period of at least 180 days, because your contact information you provided to Kachingle has changed, and/or is not working, and/or our communications are being ignored by you.
d. Suspending or Canceling a Kachingle Medallion by Site Owners:
You may then also go to the “Sites I Own” page on the Kachingle Site and mark the Medallion as “inactive”. Taking this action will cause the Medallion to stop being displayed on lists of active sites on the Kachingle Site.
If you remove the Medallion from your site, or Kachingle removes your site’s URLs from its Kachingle Anything! database at your direction, you will no longer accrue any additional Pay-Out after removal. However, to ensure final Pay-Out of all prior Kachingler payments, Site Owners MUST maintain their current Medallion payment service with Kachingle for 90 days past Medallion removal date.
e. Your Site’s activity and information will not disappear:
6. KACHINGLER’S USE OF SERVICE
a. Pay-In Source:
i. Confirming Authorization: When you provide a Pay-In source to us, you confirm that you are permitted to use that Pay-In source. You also authorize us to collect and store your Pay-In Source account information and payment information, along with other related transaction information. We will use commercially reasonable efforts to keep such information secure.
ii. Monthly Charging: When you designate the Pay-In Source to us, you also authorize us (and our designated payment processor) to charge the full amount to the Pay-In source you designate, on a monthly basis unless and until your Kachingler User Account is suspended or terminated, as provided in these Terms.
iii. Transaction Fees: Any fees or penalties charged in relation to your Pay-In method are your responsibility.
b. Pay-In is in Arrears & Non-Refundable:
i. Automatic Debits: Pay-Ins into your Kachingle account are automatically debited in arrears on a monthly basis, on the day of the month that you started or restarted your automatic payments to Kachingle. However, if your automatic payments to Kachingle were started on the last day of the month, your User Account’s monthly billing cycle date will float each month to the last day for that particular month (28th, 29th, 30th, or 31st). On the date that your monthly billing cycle ends, your monthly contribution will be divided up among the various Medallions you have Kachingled. The algorithm for payments is set by Kachingle, which reserves the right to change the algorithm at any time without permission from you or notice to you.
ii. No Refunds: There are no refunds except under special circumstances, as determined by Kachingle in its sole discretion.
iii. Failure to Pay: Your access to the Service will be deactivated without notice for your failure to pay, including cases where we are unable to debit your payments using your designated Pay-In source due to lack of funds or exceeding charge or withdrawal limits.
iv. Distributions: “Kachingling Activity” is defined as the act of logging into the Medallion (which happens automatically with your sign-in to the Kachingle Site), going to at least one Medallion on a Site Owner’s site (or the Medallion widget in the Kachingle Anything! browser extension that appears on sites whose URLs are in the Kachingle Anything! database), marking that Medallion as one that you want to Kachingle, and then visiting at least one such activated Medallion in a month. If during a given month you have not Kachingled any Medallions or you have the Kachingle icon on the Service turned off (“No Kachingling Activity”), your monthly payment will be held until such a month arrives where you have had a least one Kachingling Activity, and at the end of that month, your accumulated monies will be distributed based on your Kachingling Activity that month. If after having some Kachingling activity, you have no Kachingling Activity for one year, Kachingle will take your accumulated balance and donate it to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
If you sign up for the Service and never have any Kachingling Activity, your Pay-Ins will continue to accumulate in your Kachingle User Account. In this case, Kachingle will attempt to contact you via email using the email address that you associated with your User Account, on a periodic basis for a period of at least 6 months (“Reminder Period”), after which time Kachingle will have the right to automatically shut down your account, and the remaining balance in your User Account will be donated to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
If at any point during this Reminder Period, you generate any Kachingling Activity, then at the end of your monthly payment cycle, your accumulated account balance will be distributed to Site Owners based on your Kachingling Activity that month and the Algorithm that is in effect at the time.
c. Suspending & Restarting Your Account:
i. You Are In Control: You may suspend or restart your Kachingle User Account at any time by logging in to your Kachingle User Account, clicking on “Settings” and cancelling or restarting your monthly subscription. Cancelling your monthly subscription is a suspension of your Account. UNLESS OR UNTIL YOU SUSPEND YOUR ACCOUNT, YOUR PAY-INS WILL CONTINUE TO BE CHARGED AND PROCESSED. See our FAQs for details.
ii. Funds Distribution: If you suspend your Kachingle User Account as described above, any remaining funds in your Account will be distributed to your Kachingled-enabled sites based on your then-current billing period’s activity. If there is no Kachingling Activity from you for the billing period in which you suspend your Kachingle User Account, remaining funds will be held until such time as you reactivate your account and start Kachingling again. After 6 months or more, if you have not reactivated your account, and Kachingle has not been able to reach you, your funds will be will be donated to Kachingle’s charity of choice, the The Musella Foundation for Brain Tumor Research and Information. This foundation was chosen because they were one of the sites that Kachingle Founder Cynthia Typaldos used when she was supporting her friend Laura Haydée Gutierrez (1951-2005), of Buenos Aires, Argentina, who was stricken with brain cancer, and is one of the sites that Cynthia wanted to monetarily support during the process of her getting the idea for the crowd-sourced voluntary micropayment service which is now Kachingle (history video).
iii. Restarting Your Account: If you decide to restart your Kachingle User Account, you will need to setup your Pay-In information again on the Settings page (and login to any Kachingle Medallion if you are not already logged-in to a Medallion). At the end of the first month after you restart your account in which you have Kachingling activity, if there were any funds leftover in your Kachingle account from when you suspended it, those funds will be distributed to Site Owners based upon your Kachingling activity that month. .
d. Your Kachingle User Account and Activity Will Remain Viewable: Even after you have turned off Kachingling of a site and/or suspended your Kachingle User Account, your previous Kachingling Activity will remain viewable by all Kachingle users, because for historical financial tracking and other purposes, Kachingle reserves the right to ongoingly store all Kachingle activity. You can however mark all of your Kachingling Activity as “anonymous” – please see the FAQ for instructions. Unless you mark your Kachingle account as anonymous, the Display Name or Special Name you select will be displayed in association with your contributions.
7. TERMINATION Your account will be deemed terminated within ten (10) business days of Kachingle’s receipt of your notice of termination. In addition, Kachingle may investigate any activity that may violate these Terms and may at any time, and at its sole discretion, terminate all or part of the Service, terminate or suspend your account or your participation in all or part of the Service for any reason. Upon termination of participation or termination of this Agreement for any reason, the terms which by their nature are intended to survive (including but not limited to Sections 7 to 19) will survive termination.
8. INDEMNITY You will indemnify and hold harmless Kachingle, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any and all liabilities, claims, demands, suits, losses, damages, costs, fees and expenses (including reasonable attorneys fees and costs) resulting from or relating to your access to or use of the Kachingle Site or the Service, including but not limited to violation of these Terms by you, or the infringement by you, or any third party using your account or Kachingle User ID, of any intellectual property or other right of any person or entity.
9. WARRANTY DISCLAIMERS We try to keep Kachingle bug-free, and safe. But you use the Service at your own risk. We are providing Kachingle “AS IS” and “AS AVAILABLE”, without any express or implied warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KACHINGLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
You acknowledge that this means that the Kachingle Site and Service may be temporarily unavailable from time to time for maintenance or other reasons. Kachingle assumes no responsibility for any error, omission, interruption, deletion, defect (including correction of defects), delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, your communications.
The Kachingle Site or Service may contain, or direct you to content or sites containing, information that some people may find offensive or inappropriate. Kachingle makes no representations concerning any content or sites contained in or accessed through the Kachingle Site or Service, and Kachingle will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Kachingle Site or the Service.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KACHINGLE, ANY AGENT OR ANY SERVICE PROVIDER OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
The Kachingle Site and the Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Kachingle has no control over such sites and resources, you acknowledge and agree that Kachingle is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources. You further acknowledge and agree that Kachingle shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of, or reliance on, any such content, goods or services available on or through any such site or resource.
11. LIMITATION OF LIABILITY
IN NO EVENT SHALL KACHINGLE OR ITS LICENSORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (AND EVEN IF ADVISED OF THE POSSIBILITY) (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THESE TERMS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. ELECTRONIC COMMUNICATIONS
The information communicated through the Kachingle Site and the Service constitutes an electronic communication. When you communicate with us through the Kachingle Site, the Service or other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by us.
Notices and communications to Kachingle must be sent to the applicable address given in this agreement, or by email to email@example.com, or by postal mail to Kachingle’s New York office: Paul LeFrois, Director of Finance, Kachingle Inc., 11 Schoen Place, 6th floor, Pittsford, NY 14534, Phone (585) 267-4849.
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings relating to or in connection with these Terms, to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13. JURISDICTIONAL ISSUES
This Kachingle Site and the Service is controlled and operated by Kachingle (and by its suppliers’ and licensors’) offices in the United States. Kachingle makes no representation that materials in the Kachingle Site and the Service are appropriate or available for use in all locations worldwide. You are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Kachingle Site and the Service from jurisdictions where the contents of the Kachingle Site and the Service are illegal or penalized is prohibited.
If you provide to us in any way any suggestions or comments regarding the Kachingle Site or any of the Service, features or aspects, you agree that we (and our providers, suppliers and licensors) may use, share, commercialize and exploit any and all such feedback without obligation or liability to you or any third party, in perpetuity. You agree not to submit any feedback that is subject to any third party rights.
No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Kachingle in any respect whatsoever. 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. Kachingle shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Kachingle’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so as to affect the intention of the parties, and these Terms shall otherwise remain in full force and effect and enforceable.
Your account and these Terms are personal to you. Accordingly, you may not assign, transfer, delegate or sublicense your account or these Terms or your rights or obligations hereunder except with Kachingle’s prior written consent. Any attempted assignment without Kachingle’s consent is null and void. Kachingle may freely transfer, assign and delegate these Terms, and any or all of its rights and/or obligations without your consent.
16. GOVERNING LAW; DISPUTE RESOLUTION
These Terms shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. You agree that the terms of the Uniform Computer Information Transactions Act, to the extent applicable to the Kachingle Site or the Service and your access or use thereof, if at all, shall not apply to these Terms. Any dispute, controversy or claim arising out of or relating to the use of the Kachingle Site, the Service or these Terms, including any breach thereof, shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any arbitration shall be conducted in Santa Clara County, California in the English language. Judgment on the award rendered may be entered in any court having jurisdiction thereof. Without limiting the foregoing, where Kachingle or you makes a good faith determination that a breach of these Terms by the other (including infringement of intellectual or proprietary rights) is such that a temporary restraining order or other injunctive relief is the only appropriate and adequate remedy, such action may proceed without first resorting to arbitration as described herein.
In any action or proceeding to enforce rights under the Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
17. ENTIRE AGREEMENT; MODIFICATIONS
18. OUR PROPRIETARY RIGHTS
The Kachingle Site and the Service contain proprietary and confidential information that is available only to registered users and is protected by applicable intellectual property and other laws. The content on the Kachingle Site, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, “Materials”) and the Marks (as defined below) are owned by or licensed to Kachingle, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All rights not expressly granted are reserved by Kachingle and its licensors.
KACHINGLE, TO KACHINGLE, KACHINGLE IT, KACHINGLING, KACHINGLES, KACHINGLE THIS, KACHINGLER, KACHINGLED, KACHINGLE VISITS, KACHINGLED VISITS, KACHINGLE ACTIVITY, SITES I OWN, SITES I VISIT, and other Kachingle graphics, logos, designs, page headers, button icons, scripts, and service names are trademarks, service marks or trade dress (collectively, “Marks”) of Kachingle in the U.S. and/or other countries. The Marks may not be used, including as part of other trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available in the set of icons and marks that Kachingle makes available to its Site Owners and Kachinglers (“Kachingle Icon Pack”) may be used by partner and third party sites in connection with providing appropriate links to the Kachingle Site and the Kachingle Medallion and to identify your site as part of the Network, only in the manner and as permitted by Kachingle, and for no other purpose or in any other manner.