- Your Agreement with ThinkSmart.
Unless otherwise defined, capitalized terms used throughout these Terms have the meanings stated below:
2.1 “Account Information” means the information you provide to ThinkSmart when you access the Service, including your ThinkSmart ID and log-in information.
2.3. “Content” means all data and information regardless of form or content including but not limited to Documents, Materials and any other information (including personally identifiable information), data, images or other materials disclosed or uploaded by or on behalf of you in connection with the use of the Service.
2.4 “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, and any other intellectual and proprietary rights.
2.5 “Law” means any applicable law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction, such as any laws regarding the export of data or software to and from the United States or other applicable countries.
2.6 “Marks” means the trademarks, logos and service marks displayed on the Services.
2.7 “Materials” means any materials provided by you or ThinkSmart, including without limitation any (a) User Material; (b) information, data, documents, images, photographs, graphics, audio, videos, or webcasts, (c) products, and (d) Software.
2.8. “Service” means the ThinkSmart Service enabling you to manage business documents, processes, workflows and the like.
2.8 “Shared Material” means the User Material that you or other Users share through the Services.
2.9 “Share” means to email, post, transmit, upload, or otherwise make available through your use of the Services.
2.10 “Software” means ThinkSmart software code and associated documentation, including without limitation any mobile and tablet applications related to the Services, content files, drivers, patches, or fonts. Software may also include third-party applications with which the Service is integrated or for which ThinkSmart has the right to sublicense to Users.
2.11 “ThinkSmart Materials” means any Materials provided by ThinkSmart under these Terms.
2.12 “User” means a user of the Service.
2.13 “User Material” means (a) Your Material and (b) Shared Material uploaded by other Users.
2.14 “Your Material” means any Materials that you Share through your use of the Services.
2.15 “Your Shared Material” means Your Material that you choose to make into Shared Material.
- The Service.
3.1. Service. The Service enables you and third parties to manage Documents, Content, and workflows and processes related to such Documents and Content and to interact with online e-signature providers.
3.2. Storage of Content. ThinkSmart will store an amount of Content that is not abusive and/or unduly burdensome in ThinkSmart’s sole discretion; provided, however Content may be deleted (a) if you fail to pay any Subscription Fees or other fees payable to ThinkSmart for the Service; (b) if you instruct ThinkSmart to delete the Content; or (c) on account of strikes, shortages, acts of terrorism, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of ThinkSmart.
3.4. Limitations. ThinkSmart retains the right to create reasonable limits on your use of the Services, including but not limited to limits on file size, storage space, processing capacity, time frames for retention of Content, and similar limitations described in the Service and as otherwise determined by ThinkSmart in its sole discretion. If applicable, such limitations may be associated with your Services subscription level.
- Acceptance of Terms.
4.1 You may not use the Services if you do not agree to the Terms. You may accept the Terms (a) by selecting “I agree” to these Terms, (b) by using the Services in any way, such as downloading or uploading any Materials made available via the Services by ThinkSmart, you, or other Users.
4.2 ThinkSmart may require you to provide consent to the updated Terms before further use of the Services is permitted. Otherwise, your continual use of any Service constitutes your acceptance of the changes.
5.2. Your Responsibilities Regarding Information of Users. As between ThinkSmart and you, you shall have sole responsibility for any and all personally identifiable information (“Information”) of Users used and submitted in connection with the Service, and ThinkSmart shall have no responsibility in connection thereto. You shall comply with all data protection, data security and privacy laws and rules applicable to Information of Users (“Privacy Laws”). This obligation is to apply whether such Privacy Laws are regional (North America) or international. You shall obtain and maintain consent from Users (i) to your access, use, or disclosure of Information of Users; and (ii) to ThinkSmart providing the tools for you to perform the actions described herein. You shall obtain any authorizations from Users required to enable ThinkSmart to provide the Service. You shall defend, indemnify, and hold harmless ThinkSmart from any claim, suit or proceeding brought against ThinkSmart by a User in connection with any acts or omissions with regards to such Information of Users; (b) Sensitive Information of Users. In addition to your responsibilities set forth herein, you specifically acknowledge and agree: (i) ThinkSmart (1) is not acting on your behalf as a Business Associate or subcontractor as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented, (“HIPAA”) when providing and making available the Services to you; and (2) solely complies with the privacy and security terms described in this Agreement; (iii) you are solely responsible for compliance with HIPAA in connection with Protected Health Information (as such term is defined in HIPAA, the Health Information Technology for Economic and
Clinical Health (“HITECH”) provisions of the American Recovery and Reinvestment Act of 2009, and regulations promulgated thereunder, as each may be amended from time to time) obtained or used in connection with use of the Service by you and Users; and (iv) you are solely responsible for compliance with any data protection, data security, and privacy laws and regulations applicable to other sensitive information, including but not limited to Social Security numbers, credit card numbers, driver’s license numbers, and bank account information, obtained or used in connection with use of the Service by you and Users, including but not limited to laws and regulations requiring encryption of Information (in storage and/or in transit). Accordingly, you are solely responsible for the appropriate configuration of and use of any security features offered within the Service (including encryption options, if any) necessary to meet your obligations under such laws and rules (although ThinkSmart does not represent or warrant that the Service’s security features will meet the requirements of any such laws or regulations).
5.4 Communications from ThinkSmart. Notwithstanding any communication preferences indicated by you, ThinkSmart may send to you service-related e-mails regarding service maintenance events or modifications to the functionality or delivery of the Service. In particular, if the Service experiences a service interruption, ThinkSmart may email you to let you know, even if you have otherwise told ThinkSmart you have elected not to receive general email communications from ThinkSmart. You agree that all electronic communications or notices sent to the email address you provide to ThinkSmart, placed in your account, or posted on the ThinkSmart website will be considered “in writing” and received within five (5) business days of its dissemination. ThinkSmart disclaims all responsibility for all failures in communication caused by failures of third parties to properly process or deliver ThinkSmart’s electronic communications.
- Ownership and License.
6.1 Services and ThinkSmart Materials. The Services and ThinkSmart Materials, and their selection and arrangement, are protected by Intellectual Property Rights. Except as expressly provided in the Terms, ThinkSmart and its licensors do not grant any express or
implied rights to use the Services and Materials. All rights, title, and interest in the Service and ThinkSmart Materials, in all languages, formats, and media throughout the world, are and will continue to be the exclusive property of ThinkSmart and/or its licensors and nothing in the Terms shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to you or any third party.
6.2 Trademarks. The Marks are the property of ThinkSmart or other rights holders. You are not permitted to use the Marks without the prior consent of ThinkSmart or the rights holder. ThinkSmart and the ThinkSmart logo are trademarks of ThinkSmart LLC.
6.3 License. ThinkSmart grants you a personal, worldwide, revocable, limited, non- transferable, non-sublicensable, non-assignable, nonexclusive license to use the Software in the manner permitted by the Terms. For clarification, you shall not distribute, lease, rent, sell, or sublicense the Software. You agree that you will not decompile, reverse engineer, or otherwise attempt to discover the source code of the SoftwareYou may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. For clarity, your use of the Software is also subject to the disclaimers and limitations in Sections 13, 14, 15 and 16 below.
6.4 Updates. ThinkSmart may update the Service from time to time. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, and completely new versions. You agree to receive such updates (and permit ThinkSmart to deliver these to you with or without your knowledge) as part of your use of the Services.
- Use of Service and Materials.
7.1 If you comply with the terms and conditions of this Agreement, ThinkSmart grants to you a non-exclusive, non-transferable, revocable right to access and use the Services, to Share Your Materials to the Service, and to use the ThinkSmart Materials in connection with the Services, subject to the restrictions stated in this Section.
7.2 Your Agreement. You agree to comply with the terms and conditions of this Agreement and with all applicable local, state, national and international laws and regulations all export and other laws regarding the transmission of technical data exported from any country through the Service (collectively, “Law(s)”).
7.3. Authority to Use the Service. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder, including having a valid license to use the software applications that generate Content, and the right to maintain Content on the Service. Otherwise, you are not permitted to maintain Content on the Service.
7.4. Access to Service. You acknowledge that your ability to access the Service may require the payment of third party fees (including but not limited to telephone toll charges, facsimile charges, ISP, or airtime charges) and that you are responsible for paying such fees. ThinkSmart is not responsible for any equipment or software you may need to be able to access and/or use the Service. The Service may not be available in languages other than English.
7.5. Account Signup. Each User of the Service will be provided a user name (or “ID”) and password by their company administrator, with which they will access the Service.. Use of one ID by more than one User is not permitted. ThinkSmart may immediately terminate your ability to access and use the Service if it becomes aware of the use of an ID by more than one User. You agree that your Account Information will always be complete, accurate, and up-to-date. It is your responsibility to keep your account password or log-in credentials confidential at all times and you are solely responsible to ThinkSmart for all activity that occurs via your Account. If you become aware of any unauthorized use of your account or Account Information, or any other breach of security, you agree to notify ThinkSmart by contacting Support at [email protected] ThinkSmart may require that you change your Account Information or certain parts of your Account Information at any time for any reason.
7.6. Individual Use. ThinkSmart makes the Service available to you only for as a business customer or client of ThinkSmart or as an employee or other authorized service provider of such ThinkSmart customer or client. Nevertheless, you are responsible for all activity occurring under your account and ID, and you must keep your Account Information, including your password, confidential and not share such Account Information and ID with other individuals or third parties.
7.7. Your Confidential Content. If you maintain confidential or personal information, trade secrets, Content you are restricted from disclosing or other sensitive content on Service, you are solely responsible for implementing safeguards beyond the security measures the Service provides.
7.8. Downloaded Documents. You are solely responsible for maintaining the security and confidence of any Content which you associate with the Service and any Content once it is downloaded or transferred from the Service, whether manually or via a Third Party Service. Provided that the Content is available on the Service (i.e., it has not been deleted), you may download multiple copies of such Content. You are responsible for obtaining the software and hardware necessary for use of the Service, viewing, downloading, and printing of Documents, and other information available for view, download and print.
7.9. Information of Third Party. If you obtained access to the Service for any third party, such as your business or a business or which you provide services, you represent and warrant you have all rights and permissions necessary to provide any Information of such third parties to ThinkSmart, and you shall defend, indemnify, and hold harmless ThinkSmart from any claim, suit or proceeding brought against ThinkSmart by such third
party in connection with any acts or omissions with regards to such Information of such third parties.
7.10 Except with respect to Your Material, you agree:
(a) Not to alter, copy, modify, or re-transmit the Materials;
(b) Not to lease, license, rent, or sell the Materials or the right to use and access the Services;
(c) Not to remove, obscure, or alter any text or proprietary notices contained in Materials;
(d) Not to copy or imitate part or all of the design, layout, or look-and-feel of the Service, which are protected by Intellectual Property Rights;
(e) To use the Services and the Materials only as permitted by the Terms and any Law; and
(f) That certain Services and Materials may be available only if you have paid a fee or have provided certain Account Information.
7.11 ThinkSmart uses reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and repairs, or as a result of failure of telecommunications links and equipment that are beyond our control. ThinkSmart will take reasonable steps to minimize such disruption, to the extent it is within our reasonable control.
7.12 ThinkSmart may modify or discontinue, temporarily or permanently, the Services or Materials, or any portion thereof, with or without notice. You agree that ThinkSmart shall not be liable to you or anyone else if we do so.
- Payment Terms.
8.1 Subscription Fees. Services are generally subscription-based. Subscription Fees are non-refundable, except as otherwise stated in specific subscription terms applicable to a Service. Subscription Fees may change at the end of your subscription period.
8.2 You are responsible for paying all taxes levied in connection with your use of the Services. Your ability to access the Services may require payment of third-party fees (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.). ThinkSmart has no connection to or responsibility for such fees.
8.3 Collection of Subscription Fee. You agree that, in the event ThinkSmart is unable to collect the Subscription Fees owed by you to ThinkSmart for the Services, ThinkSmart may take the steps it deems necessary to collect such Subscription Fees from you and that
you will be responsible for all costs and expenses incurred by ThinkSmart in connection with such collection activity.
- User Conduct.
9.1 You agree not to access or attempt to access the Services by any means other than the interface provided by ThinkSmart or circumvent any access or use restrictions put into place to prevent certain uses of the Services.
9.2 You agree not to use, or to encourage or permit others to use, the Services to:
(a) Share any Material that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, child-pornographic, lewd, profane, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) Share any Material that you do not have a right to Share under any Law or contractual or fiduciary relationship;
(c) Share any Material that infringes any Intellectual Property Right or other proprietary right of any party;
(d) Use the Services or Materials such that it will mislead a User into believing that they are interacting directly with ThinkSmart or any Service;
(e) Share any Material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;
(f) Access or use the Services in any manner that could damage, disable, overburden, or impair any ThinkSmart server or the networks connected to any ThinkSmart server;
(g) Intentionally or unintentionally interfere with or disrupt the Services or violate any applicable Laws related to the access to or use of the Services, violate any requirements, procedures, policies, or regulations of networks connected to the Services, or engage in any activity prohibited by the Terms;
(h) Disrupt or interfere with the security of, or otherwise cause harm to, the Services, Materials, systems resources, accounts, passwords, servers, or networks connected to or accessible through the Services or any affiliated or linked sites;
(i) Disrupt, interfere with, or inhibit any other User from using and enjoying the Services or Materials, or other affiliated or linked sites, Services, or Materials;
(j) Access or attempt to access any Material that you are not authorized to access or through any means not intentionally made available through the Services;
(k) Reproduce, sell, trade, resell or exploit for any commercial purpose, any portion of the Services or any Materials, use of any Service or Materials, or access to any Service or Materials, or to sell, lease, or rent access to or use of the Service, or otherwise transfer any rights to use the Service under this Agreement (including without limitation, on a timeshare or service bureau basis);
(l) Use any data mining, robots, or similar data gathering and extraction methods in connection with the Services or Materials, nor disclose, mine, harvest, or otherwise collect information, including e-mail addresses, or other private information about any third party without that party’s express consent;
- Your Material.
10.1 Storage. ThinkSmart may provide online storage for Your Material, subject to Section 10.2 below. Unless otherwise stated in a separate written agreement between you and ThinkSmart, ThinkSmart has (a) no obligation to store Your Material and (b) no responsibility or liability for the deletion or accuracy of any Materials, including Your Material, the failure to store, transmit, or receive transmission of Materials, or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
10.2 You agree that ThinkSmart retains the right to create reasonable limits on the use of the Materials, including Your Material, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by ThinkSmart in its sole discretion. ThinkSmart may require you to delete Your Material until you are within the storage space limit associated with your account.
10.3 You agree that you, not ThinkSmart, are entirely responsible for all of Your Material that you Share, whether publicly posted or privately transmitted. You assume all risks associated with use of Your Material, including any reliance on its accuracy, completeness, or usefulness.
10.4 Settings Related to Use and Access of Your Material. Certain Services may enable you to specify the level at which such Services restrict access to Your Material. If you do not choose the access level to apply to Your Material, the system may default to its most permissive setting.
10.5 Licenses to Your Material. ThinkSmart requires certain licenses from you with respect to Your Shared Material in order to operate and enable the Services. Accordingly, you grant the licenses to Your Shared Material as follows:
You grant ThinkSmart a worldwide, royalty-free, non-exclusive, transferrable, and sublicensable, license to distribute, modify, publish, reproduce, translate, and use Your Material for the purpose of operating and improving the Services and enabling your use of the Services. You may revoke this license and terminate ThinkSmart’s rights at any
time by removing Your Material from the Service; provided that you agree that ThinkSmart may retain and use copies of Your Material for archival or “backup” purposes and to investigate claims of misuse.
10.6 You acknowledge that the Services are automated (e.g., Your Material is uploaded using software tools) and that ThinkSmart personnel will not access, view, or listen to any of Your Material, except as reasonably necessary to perform the Services, including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by ThinkSmart in good faith to conform to legal requirements or comply with legal process; or (d) enforce these Terms, including investigation of potential violations hereof.
10.7 You acknowledge and agree that although ThinkSmart endeavors to provide security measures to protect Your Material (including Your Shared Material that you shared privately), ThinkSmart is not liable for any damages resulting from the disclosure of Your Material.
- Shared Material.
11.1 License to Shared Material. ThinkSmart grants you a worldwide, royalty-free, and non-exclusive license to distribute, display, download, perform, and reproduce the Material , subject to the restrictions stated in this Section 10. With respect to Shared Material Shared in a group allowing for content sharing, ThinkSmart also grants you the license to adapt and modify such Shared Material. The license granted in this Section 11.1 is further limited to your personal and internal use purposes only.
11.2 It is your sole responsibility to determine what limitations, if any, are placed on your Shared Material. ThinkSmart cannot and does not monitor or control what others do with the Shared Material, nor can ThinkSmart prevent them from adding to, modifying, or adapting the Shared Material.
11.3 You agree that ThinkSmart has no liability of any kind should other Users use, modify, destroy, corrupt, copy, or distribute your Shared Material in violation of the limitations that you may impose on its use.
11.4 Shared Material may include personal information (such as email addresses) to facilitate your ability to share Your Material. It is your sole responsibility for any and all personal information that you or other Users used and submitted in connection with the Services. You shall comply with all data protection and privacy laws and rules applicable to the personal information of other Users.
11.5 Upon removal of Your Material from the Service or upon making your Shared Material no longer shared, ThinkSmart shall have a reasonable time to cease use, distribution, and/or display of Your Material. However, you acknowledge and agree that
ThinkSmart shall have the right but not the obligation to keep archived or “backup” copies of Your Material or use Your Material for archival or investigative purposes.
- API Terms.
12.1. Availability. The Service may provide access to certain ThinkSmart APIs (as defined below), which allow you to access your ThinkSmart account and your data via ThinkSmart’s application program interface that allows integration with your systems and the Service to send, track and receive Content and Documents (“ThinkSmart API(s)”). Any use of the ThinkSmart APIs, including use of the ThinkSmart API through a Third- Party Service (as defined below) and/or third party product that accesses the Service, is bound by this Agreement plus the following specific terms:
12.2. Limited License. Subject to the terms and conditions of this Agreement, ThinkSmart grants you a limited, revocable, non-exclusive, non-transferable license to (i) use the documentation made available to you by ThinkSmart (“Documentation”); and (ii) call to and use the ThinkSmart APIs in accordance with the Documentation and the terms of this Agreement. ThinkSmart reserves all rights and interests not expressly granted hereunder.
- Use of Third Party Applications.
13.1 Support. ThinkSmart supports optional functionality integrating third-party services (“Third Party Service(s)”). For example, the Service may integrate with third-party electronic signature solutions such as Adobe’s EchoSign solution. These Third Party Services may contain features and functionalities linking you or providing you with certain functionality and access to third-party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole (“Third Party Content”).
13.2 Equipment. You are responsible for obtaining and maintaining any equipment or ancillary services needed to access mobile and tablet applications and you are responsible for all applicable taxes and fees incurred while accessing such applications (such as fees from your mobile carrier, overage charges, etc.)
13.3 Relationship. ThinkSmart is not an agent of any such third-party service, nor is ThinkSmart a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, ThinkSmart does not control, endorse or accept responsibility for Third Party Services and Third Party Content and you irrevocably waive any claim against ThinkSmart with respect to such sites and Third-Party Content. ThinkSmart shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
13.3. Responsibility. You are solely responsible for your dealings with any third party related to the Third Party Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any Third Party Services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any Third Party Services or Third Party Content, you expressly agree that ThinkSmart will not be liable. The Third Party Services might not be available in all languages or to residents of all countries and ThinkSmart may, at any time and for any reason, modify for discontinue the availability of any Third Party Service.
13.4. YOUR USE OF ANY OF THE THIRD PARTY SERVICES IS AT YOUR OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS IN THIS AGREEMENT.
- Your Warranty, Indemnification Obligation, and Waiver.
14.1 You represent and warrant that: (a) you own the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s), to use Your Material in keeping with your use in connection with the Services or as otherwise permitted by the Terms; (b) you have the rights necessary to grant the license and sublicenses described in the Terms; (c) you have received consent from any and all persons depicted in Your Material to use Your Material as set forth in the Terms, including distribution, public display, public performance, and reproduction of Your Material; and (d) Your Material does not violate or infringe any intellectual property right or other proprietary right, including right of publicity or privacy, of any person, company or entity, or other third party.
14.2 You agree to indemnify and hold ThinkSmart and its subsidiaries, affiliates, officers, agents, employees, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of Your Material, your use of the Services or Materials, your connection to the Services or Materials, your use and access of personal information of other Users, the actions of any member of your group any claim that Your Material caused damage to someone else, any dealings between you and anyone else advertising or promoting via the Services or Materials, your violation of the Terms, or your violation of any rights of another, including any Intellectual Property Rights.
14.3 You acknowledge and agree that by accessing or using the Services or Materials, you may be exposed to Materials (including Shared Group Material) from others that you may consider offensive, indecent, or otherwise objectionable, and agree to accept that risk.
- DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
15.1 THE SERVICES, AND MATERIALS ARE PROVIDED BY THINKSMART “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, THINKSMART AND ITS LICENSORS MAKE NO WARRANTY THAT (a) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (c) THE QUALITY OF THE SITE, SERVICES, OR MATERIALS WILL MEET YOUR EXPECTATIONS; OR THAT (d) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES, OR MATERIALS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THINKSMART OR THROUGH OR FROM USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
15.2 THINKSMART SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF OR PARTICIPATION IN ANY SERVICES AND YOUR USE OF MATERIALS. ANY MATERIAL DOWNLOADED, MADE AVAILABLE, OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THINKSMART ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM ANY OF THE SERVICES.
15.3 THINKSMART DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH INTEGRATED THIRD-PARTY APPLICATIONS. THINKSMART MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
15.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THINKSMART WILL HAVE NO LIABILITY RELATED TO USER MATERIAL ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY, OR OTHER LAWS. THINKSMART ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE USE, MISUSE, LOSS, MODIFICATION, OR UNAVAILABILITY OF ANY USER MATERIAL.
15.5 THINKSMART WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SITE OR ANY SERVICES OR MATERIALS, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
15.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability.
16.1 IN NO EVENT SHALL THINKSMART, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF THINKSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SITE, SERVICES OR MATERIALS. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDE THINKSMART’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THINKSMART OR ITS EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY.
16.2 THINKSMART’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, LICENSORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO US $100 OR THE AGGREGATE AMOUNT PAID BY YOU FOR ACCESS TO THE SERVICE DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF THINKSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
You have no obligation to provide ThinkSmart with ideas, suggestions or proposals (“Feedback”). However, if you submit Feedback to ThinkSmart, we may use it for any purpose without compensation to you.
18.1 Termination by You.
(a) As either an individual user or a company administrator for a Service, You may stop using the Service at any time. You may terminate ThinkSmart’s right to distribute, publicly perform, and publicly display Your Shared Material by making it no longer Shared. You may terminate the remainder of ThinkSmart’s rights by removing Your Material from the Service, either by deleting it manually, or by contacting ThinkSmart to have your subscription cancelled, if applicable, and content deleted. Any fees paid by you prior to your termination are not refundable. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
(b) As a company administrator for a Service, you may terminate an individual User’s access to a Service at any time.
18.2 Termination by ThinkSmart. Subject to any specific subscription terms and conditions , ThinkSmart may at any time terminate our agreement with you if:
(a) You have breached any provision of the Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(b) ThinkSmart is required to do so by Law (for example, where the provision of the Services or Materials to you is, or becomes, unlawful);
(c) The provision of the Services to you by ThinkSmart is, in ThinkSmart’s opinion, no longer commercially viable;
(d) ThinkSmart has elected to discontinue the Services or Materials (or any part thereof); or
(e) There has been an extended period of inactivity in your account.
18.3 Termination or Suspension of Services. ThinkSmart may also terminate or suspend all or a portion of your account and/or access to the Services for any reason. Except as may be set forth in any separate written agreement between you and ThinkSmart, termination of your account may include: (a) removal of access to all offerings within the Services; (b) deletion of Your Material and Account Information, including your personal information, log-in ID and password, and all related information, files, and Materials associated with or inside your account (or any part thereof); and (c) barring of further use of the Services.
18.4 You agree that all terminations for cause shall be made in ThinkSmart’s sole discretion and that ThinkSmart shall not be liable to you or any third party for any termination of your account (and accompanying deletion of your Account Information), or access to the Services and Materials, including Your Material.
18.5 Upon expiration or termination of the Terms, you shall promptly discontinue use of the Services and Materials. However, any perpetual licenses you have granted, any of your indemnification obligations hereunder, any of ThinkSmart’s disclaimers or limitations of damages of liabilities hereunder, and Sections 6, 13-16, 20, and 21 will survive any termination or expiration of the Terms.
18.6 Upon termination of your use of the Service by you or by ThinkSmart for any other reason other than for cause, ThinkSmart will make reasonable effort to notify you at least thirty (30) days prior to termination, at the email address you provide ThinkSmart as part of your registration, with instructions on how to retrieve Your Material prior to such termination.
18.7 If your company administrator terminates your access to a Service, then you may no longer be able to access Shared Material that you or other users of the group have posted to a shared workgroup or shared workspace within that Service. You may, however, still access the Materials stored on your account, subject to Section 9.2 above.
18.8 Except as otherwise stated in any subscription terms, in the event of termination by ThinkSmart for reasons other than breach of these Terms, ThinkSmart will provide notice pursuant to the Terms and will provide you with a pro rata refund for the prepaid and unused portion of the Service.
- International Users.
19.1 These Services are controlled, operated, and administered by ThinkSmart LLC from its offices in the United States of America. If you access the Services from a location outside the United States, then you are responsible for compliance with all local Laws.
- Resolution of Disputes.
20.1 Venue. You agree that any claim or dispute you may have against ThinkSmart must be resolved by a court located in San Francisco, California, United States of America except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located in San Francisco, California, United States of America, for the purpose of litigating such claims or disputes. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
20.2 All claims you bring against ThinkSmart must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim contrary to this section, ThinkSmart may recover attorneys’
fees and costs provided that ThinkSmart has notified you in writing of the improperly filed claim and you have failed to properly withdraw the claim.
20.3 Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or Materials in violation of the Terms you agree that ThinkSmart shall be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
21.1 Notice to ThinkSmart. Any notice provided to ThinkSmart pursuant to the Terms should be sent to your account manager at ThinkSmart
21.2 Notices to You. ThinkSmart may provide you with notices, including those regarding changes to the Terms, by email, regular mail, text message, postings on or within the Services, or other reasonable means now known or hereafter developed.
21.3 Entire Agreement. The Terms constitute the entire agreement between ThinkSmart and you with respect to your access to or use of the Services and Materials and supersede any prior agreements between you and ThinkSmart on such subject matter.
21.4 Non-Assignment. You may not assign or otherwise transfer the Terms, or any right granted hereunder, without ThinkSmart’s written consent. ThinkSmart’s rights under the Terms are transferable by ThinkSmart.
21.5 Severability. If for any reason a court of competent jurisdiction finds any provision of the Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of the Terms shall continue in full force and effect.
21.6 Waiver. Any failure by ThinkSmart to enforce or exercise any provision of the Terms, or any related right, shall not constitute a waiver of that provision or right.
21.7 Report Abuse. Please report any violations of the Terms via the report abuse mechanism offered in conjunction with the specific Service in which the alleged violation occurs.
21.8 You are solely responsible for your familiarity and compliance with any laws that may prohibit you from participating in or using any part of the Services.