Last Modified: 2014-02-13
Hi and welcome! You are now reading ThinkUp's Terms of Service. This is the legal contract between you and ThinkUp when you use ThinkUp's site, services, and products. You should read this carefully before you use our site, our services or products. We've tried to be both fair and clear -- if you have any suggestions for improvement, feel free to email us at [email protected]. We've also included annotations throughout this contract; these annotations aren't a part of the contract itself, but are intended to help you follow the text and to emphasize key sections.
“We are ThinkUp and you're agreeing to these terms.”
These are some of the definitions we'll use in this contract:
By creating a Services Account or using or accessing the Services, you agree to become bound by all the terms and conditions of this Agreement, including agreement between you and ThinkUp in Section 15 to arbitrate certain claims instead of going to court. If you do not agree to all the terms and conditions of this Agreement, you shouldn't and aren't permitted to use the Services.
“We can change this agreement if needed, and when we do, we'll let you know.”
ThinkUp may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after ThinkUp provides notice of the Changes, whether such notice is provided through the Services user interface, is sent to the e-mail address associated with your Services account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
“You have to be eighteen or older.”
No individual under the age of eighteen (18) may use the Services or provide any information to ThinkUp or otherwise through the Services (including, for example, a name, address, telephone number, or email address). If you are a parent and believe your child under the age of thirteen (13) has created a Services account or otherwise provided personal information to ThinkUp, please contact us at [email protected]. You otherwise may only use the Services if you are not legally prohibited from using the Services.
“We are going to be changing and updating the service regularly.”
The Services may change frequently, and their form and functionality may change without prior notice to you. ThinkUp retains the right to create limits on and related to use of the Services its sole discretion at any time with or without notice. We will work to notify you of any such limits, or of changes to these limits, whenever possible.
ThinkUp may also impose limits on certain Services or aspects of those Services or restrict your access to parts or all of the Services without notice or liability. Generally, this will only happen when needed to maintain the service or to make necessary updates to the service. ThinkUp may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content (as defined below). ThinkUp may also suspend Accounts (as defined below) at any time, in its sole discretion.
“You shouldn't use bots or access the system in undocumented ways.”
You may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of ThinkUp and/or its service providers; (b) probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by ThinkUp (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with ThinkUp, or unless specifically permitted by ThinkUp's robots.txt file or other robot exclusion mechanisms; (d) scrape the Services, and particularly scrape Content (as defined below) from the Services, without ThinkUp's express prior written consent; (e) use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers; or (f) interfere with, or disrupt, (or attempt to do so), the access of any Subscriber, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services.
“Use accurate information when you register, and keep your password safe.”
As a condition to using certain of the Services, you may be required to create an account (an “Account”) and select a password and ThinkUp username, which will serve as a default URL of the form [username].thinkup.com (a “ThinkUp URL”).
You must provide ThinkUp with accurate, complete, and updated registration information, particularly your e-mail address, and failure to do so may result in suspension of your Account.
You agree that you shall not select or use as a ThinkUp URL a name of another person or entity, particularly with the intent to impersonate that person or entity or with the intent to otherwise cause confusion as to the origin or provenance of your Account. ThinkUp reserves the right to refuse registration of, cancel, or modify a ThinkUp URL in its sole discretion.
You are also responsible for maintaining the confidentiality of your Account password and for the security of your Account, and you will notify ThinkUp immediately of any actual or suspected loss, theft, or unauthorized use of your Account or Account password. You are responsible for all activities occurring under your Account.
“Content meants text, pictures and other stuff; Subscriber Content is your stuff.”
For purposes of this Agreement: (1) the term “Content” means any work of authorship and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, and interactive features; (2) the term “Subscriber Content” is all Content made available through user social networking accounts (such as a Facebook or Twitter account) that registered users of the Services link to their Accounts, such as pictures and Tweets.
“You own your stuff, and we own our stuff.”
As between you and ThinkUp, you retain ownership of all intellectual property rights in your Subscriber Content, and ThinkUp and/or its licensors retain ownership of all intellectual property rights in the Services and all Content made available through the Services other than your Subscriber Content. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Services of any Content made available through the Services (other than your Subscriber Content).
“You allow us to use your content in the context of using running our services and operating our business.”
As a Subscriber of the Services, you grant to ThinkUp a worldwide, non-exclusive, royalty-free, full-paid, irrevocable (other than a termination of this Agreement), transferable right and license to download, copy, store, view, display, perform, and analyze the Subscriber Content for (1) purposes of operating and providing the Services (including, without limitation, for purposes of making available Subscriber Content at your ThinkUp URL) and (2) ThinkUp's internal business purposes, including without limitation for analyzing usage of and improving its Services.
“You have the right to let us use your content. We don’t warrant other user’s content.”
You represent and warrant that you either own your Subscriber Content or have all necessary rights, licenses and consents relating thereto in order to grant ThinkUp the license rights granted herein without infringement or violation of the rights of any third party. You agree that your Subscriber Content will not: (i) include material that is not authorized by the copyright owner, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post and sell the material and to grant ThinkUp all of the license rights granted herein; (ii) include falsehoods or misrepresentations that could damage ThinkUp or any third party; (iii) include material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate. ThinkUp does not endorse any Subscriber Content or any opinion, recommendation, or advice expressed therein, and ThinkUp expressly disclaims any and all liability in connection with Subscriber Content. If notified by a user or a content owner of any Subscriber Content that allegedly does not conform to this Agreement, ThinkUp may investigate the allegation and determine in good faith and in its sole discretion whether to remove the Subscriber Content from the Services, which it reserves the right to do at any time. Additionally, ThinkUp may, at any time, remove from the Services any Subscriber Content that in the sole judgment of ThinkUp violates this Agreement.
“We'll try to delete your information if you cancel your account.”
On termination of your Account or upon your deletion of particular pieces of Subscriber Content from the Services, ThinkUp shall make reasonable efforts to make such Subscriber Content inaccessible and cease use of it; however, you acknowledge and agree that: (a) caching of, copies of, or references to the Subscriber Content may not be immediately removed; (b) such removed Subscriber Content may persist in backups (not available to others) for a reasonable period of time.
“You must get our permission to use our ThinkUp branding and trademarks.”
Any use of ThinkUp's trademarks, branding, logos and other such assets requires the express written permission of ThinkUp. If you need to use these assets, contact us at [email protected]. Any such use will be subject to compliance with our trademark guidelines.
“Paying gives you access to a set of Paid Services for a period of time.”
Some of the Services require payment of fees (the “Paid Services”). All fees are stated in United States dollars. You agree to pay all applicable fees, for all Paid Services that you sign up for, as well as any related taxes or additional charges. You represent and warrant that you have all rights to use the payment method used by you to pay for any Paid Services. By submitting payment instrument information to ThinkUp, you hereby authorize ThinkUp to use (or cause its third party payment processing services provider to use) that payment instrument to charge all fees you may incur in connection with Paid Services.
Purchases of Paid Services are final and non-refundable, except at ThinkUp's sole discretion and in accordance with the rules governing each such Paid Service. Termination of your Account or your rights under this Agreement may result in forfeiture of existing Paid Services.
ThinkUp may change its prices for Paid Services at any time. To the extent applicable, ThinkUp will provide you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Paid Service and/or by sending you email notification. If you do not wish to pay the new prices, you may choose not to purchase, or to cancel, the applicable Paid Service prior to the change going into effect.
“We want ThinkUp to be great for you, but it's not warrantied.”
YOUR ACCESS TO AND USE OF THE SERVICES OR ANY CONTENT IS AT YOUR OWN RISK. THE SERVICES AND ANY ANALYTICS PROVIDED THROUGH THE SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY AND THINKUP IS NOT RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR OMISSIONS BASED ON SUCH ANALYTICS. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, THINKUP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ThinkUp makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. ThinkUp also makes no representations or warranties of any kind with respect to Content; Subscriber Content, in particular, is provided by and is solely the responsibility of, the Subscribers providing that Content. No advice or information, whether oral or written, obtained from ThinkUp or through the Services, will create any warranty not expressly made herein.
“We're not liable for certain issues that could arise from using ThinkUp.”
You release, to the fullest extent permitted by law, ThinkUp, its directors, officers, members, employees, representatives, consultants, agents, suppliers, and/or distributors from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following:
You hereby waive applicability of California Civil Code §1542, and any similar statute or principle of common law. California Civil Code §1542 says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
“As much as the law allows, ThinkUp and its team isn't liable for certain types of damages. ThinkUp's total liability to you is limited, too.”
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THINKUP, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF: PROFITS, REVENUE, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR SUBSCRIBER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY SUBSCRIBER CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THINKUP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THINKUP AND ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, LICENSORS AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (US$50.00) OR THE AMOUNT YOU PAID US TO USE THE PPLICABLE SERVICE(S).
“We follow the law of your region in regard to warranties and liabilities.”
Some jurisdictions may not allow the exclusion of certain warranties or the exclusion/limitation of liability as set forth in Section 14, so the limitations above may not apply to you.
“You won't use ThinkUp to do illegal things.”
As a condition of your use of the Services, you represent and warrant that you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. Access to the Services from territories where their contents are illegal is strictly prohibited. You agree to comply with all rules, laws, and regulations relating in any way to your use of the Services including, without limitation, rules about intellectual property rights, the Internet, technology, data, email and privacy.
You agree to indemnify and hold ThinkUp, and its directors, officers, members, employees, representatives, consultants, agents, suppliers, licensors and/or distributors, harmless from and against any demands, suits, actions, claims, losses, damages, liabilities, judgments, settlements, costs or expenses, including attorney’s fees, arising out of or relating to your use or misuse of the Services, violation of this Agreement or violation of the rights of any other person or entity.
“If you want to cancel this agreement, just cancel your account. Same goes for us.”
Either party may terminate this Agreement at any time by notifying the other party. ThinkUp may also terminate or suspend your access to or ability to use any and all Services immediately, without prior notice or liability, for any reason or no reason, including but not limited to if you breach any of the terms or conditions of this Agreement. In particular, ThinkUp may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement.
Upon termination of your access to or ability to use a Service, including but not limited to suspension of your Account on a Service, your right to use or access that Service and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to ThinkUp or any third party.
“If there's a dispute, we'll arbitrate instead of going to court.”
“We will arbitrate certain disputes instead of going to court.” Any claim where the total amount of the award sought by either you or ThinkUp is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding anything in this Agreement, (1) either party may seek remedies in small claims court of competent jurisdiction and (2) either party may seek injunctive or other equitable relief in any court of competent jurisdiction.
“This agreement is covered by New York law. If there is a dispute between us not subject to arbitration, we'll handle it in New York.”
Before resorting to litigation, we strongly encourage you to contact us at [email protected] to seek a resolution.
This Agreement shall be governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against ThinkUp that isn’t subject to mandatory arbitration under Section 14 must be resolved exclusively by a state or federal court located in New York County, New York, except as otherwise agreed by the parties. Each party agrees to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.
“We're in the United States, so we'll follow U.S. law.”
ThinkUp provides global products and services and enables a global community for individuals. ThinkUp's operations are, however, located in the United States, and ThinkUp's policies and procedures are based on United States law. As such, the following provisions apply specifically to Subscribers located outside of the United States: (1) you consent to the transfer, storage, and processing of your information, including but not limited to Subscriber Content and any personal information, to and in the United States and/or other countries; and (2) if you are using the Services from a country embargoed by the United States, or are on the United States Treasury Department's list of “Specially Designated Nationals,” you agree that you will not use the Services.
“This is the whole agreement between us.”
This Agreement, including as it may be modified from time to time as set forth in Section 2 above, constitutes the entire agreement between you and ThinkUp with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof and constitutes the entire and exclusive agreement between the parties. 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. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by you except with ThinkUp's prior written consent. ThinkUp may assign this Agreement in whole or in part at any time without your consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind ThinkUp in any respect whatsoever. Any notice to ThinkUp that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to ThinkUp LLC., 220 East 23rd Street, Suite 601, New York, NY, 10010, Attn: Legal Department. ThinkUp may provide notices to you via e-mail to the e-mail address associated with your Account or by mail to your mailing address. The Services are provided by ThinkUp, LLC, which may be contacted at the mailing address above, by e-mail at [email protected] or by telephone at +1 646 833 8659.
“The state of California makes us tell you this.”
If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
“You can see the changes we've made to this agreement.”
You will find a link to prior versions of our Terms of Service below. We have stored these versions on GitHub, which will also allow you to compare different versions and see what terms have changed: