Terms of Service
Last updated 27 mai 2020
Welcome to www.ThingLink.com, the website and online service of ThingLink (as defined in Section 14 below). This page explains the terms by which you may use our online and/or mobile services, web site, APIs, and software, including any manuals, instructions or other documents or materials that we make available to you and which describe the functionality, components, features or requirements of the service, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof provided on or in connection with the service (collectively the “Service”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Use of Service
- Eligibility. You may use the Service only if you can form a binding contract with ThingLink, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations, (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection). In order to register for an account, we may, at our discretion, allow you to sign up through a third-party service provider, such as Facebook, Microsoft, Twitter, or Google. The Children’s Online Privacy Protection Act (COPPA) prohibits online service providers from knowingly collecting personally identifiable information from children under 13 years of age without verifiable parental consent (“Consent”). Accordingly, students accessing the Service subject to Consent provided via their education institution, as allowed under COPPA, will require the use of a unique invitation code supplied by their education institution in order to create an account. Any use or access to the Service by anyone under 13 without Consent, is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by ThingLink.
- ThingLink Service. Subject to the terms and conditions of this Agreement and your payment of any applicable fees, you are hereby granted a non-exclusive, limited, non-transferable, revocable license to use the Service as permitted by the features of the Service during the term of this Agreement. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Service; and (b) control the content and use of User Content (as defined below), including the uploading or other provision of User Content for processing by the Service. ThingLink reserves all rights not expressly granted herein in the Service and ThingLink Content (as defined below). ThingLink may terminate this license in accordance with this Agreement. We may from time to time in our sole discretion engage third parties to provide, maintain, and/or improve the Service (each, a “Subcontractor”).
Unless you are an educator, parent or guardian managing your student, child or ward’s account, you may never use another User’s account. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify ThingLink immediately of any breach of security or unauthorized use of your account. ThingLink will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing ThingLink your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- Account Types and Fees. ThingLink offers the Service to both individuals and entities, including businesses and educational institutions. For descriptions of all account types and features currently available and our policy that governs their use, please see the Acceptable Use Policy. As our Service is constantly developing, please consult them regularly.
- Free Access. If you register for a free user account or elect to receive a free trial version of a paid version of the Service (each, “Free Access”), we will provide you access to the selected version of the Service free of charge until the earlier of (a) the end of the free trial period, or (b) the start date of any Purchased Service subscriptions ordered by you for any such version of the Service, or (c) termination by us in our sole discretion. We may, without prior notice, create usage limits for your Free Access to the Service. Additional terms and conditions may appear on the registration web page of the Free Access version of the Service to which you subscribe. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- Purchased Access. “Purchased Access” means access to any version of the Service that you purchase under an Order, as distinguished from those provided as Free Access. Purchased Access to the Service may be subject to additional terms set forth for the applicable version of the Service to which you subscribe. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- Changes. We reserve the right, in our sole discretion, to make any changes to the Service that we deem necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Service, (ii) the competitive strength of or market for the Service or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable Law.
- Service Rules. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to ThingLink servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that ThingLink grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from ThingLink.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may permanently or temporarily terminate or suspend your access to the Service without notice and liability if in our sole determination you violate any provision of this Agreement. If you become aware of any actual or threatened activity prohibited by in this Section 1(h), you shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify us of any such actual or threatened activity.
You are solely responsible for your interactions with other ThingLink Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. ThingLink shall have no liability for your interactions with other Users, or for any User’s action or inaction.
- User Content
Some areas of the Service allow Users to post or provide content such as profile information, videos, images, music, comments, questions, and other content or information on the Service (any such materials a User submits, posts, displays, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. ThingLink has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that it does not violate copyrights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. ThingLink reserves the right, but is not obligated, to reject and/or remove any User Content that ThingLink believes, in its sole discretion, violates any of these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
ThingLink takes no responsibility and assumes no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that ThingLink shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
The Service does not replace the need for you, as applicable, to maintain regular data backups or redundant data archives. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF YOUR USER CONTENT.
- User Content License Grant. By posting or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and any name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and ThingLink’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
- Mobile Software
- Mobile Software. We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. ThingLink does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. ThingLink hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one ThingLink account on any mobile device controlled, owned or leased solely by you.
You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that ThingLink may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and ThingLink or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. ThingLink reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and ThingLink Service.
- Mobile Application Marketplaces. The following applies to any Mobile Software you acquire from the iTunes Store, the Google Play, or any other similar marketplace for mobile applications (“Sourced Mobile Software”): You acknowledge and agree that this Agreement is solely between you and ThingLink, not the proprietor of such marketplace (each a “Proprietor”), and that Proprietor has no responsibility for the Sourced Mobile Software or content thereof. Your use of the Sourced Mobile Software must comply with the applicable terms of service for the marketplace from which you downloaded the Sourced Mobile Software. You acknowledge that Proprietor has no obligation whatsoever to furnish any maintenance and support services with respect to the Sourced Mobile Software. In the event of any failure of the Sourced Mobile Software to conform to any applicable warranty, you may notify Proprietor, and Proprietor will refund the purchase price for the Sourced Mobile Software to you; to the maximum extent permitted by applicable law, Proprietor will have no other warranty obligation whatsoever with respect to the Sourced Mobile Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to ThingLink as a provider of the software. You acknowledge that Proprietor is not responsible for addressing any claims of you or any third party relating to the Sourced Mobile Software or your possession and/or use of the Sourced Mobile Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Sourced Mobile Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to ThingLink as a provider of the software. You acknowledge that, in the event of any third-party claim that the Sourced Mobile Software or your possession and use of that Sourced Mobile Software infringes that third party’s intellectual property rights, ThingLink, not Proprietor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and ThingLink acknowledge and agree that Proprietor, and Proprietor’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Sourced Mobile Software, and that, upon your acceptance of the terms and conditions of this Agreement, Proprietor will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Sourced Mobile Software against you as a third-party beneficiary thereof.
- Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “ThingLink Content”), and all Intellectual Property Rights related thereto, are the exclusive property of ThingLink and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any ThingLink Content. Use of ThingLink Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place ThingLink under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, ThingLink does not waive any rights to use similar or related ideas previously known to ThingLink, or developed by its employees, or obtained from sources other than you.
ThingLink cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- DMCA Notice
Since we respect artist and content owner rights, it is ThingLink’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify ThingLink’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit ThingLink to contact you, such as your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent: Attn: DMCA Notice ThingLink, Inc. Address: 444 Ramona Street, Palo Alto, California 94301 United States, Telephone: (415) 318-3464, Fax: (267) 501-3048, abuse@ThingLink.com.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying ThingLink and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with ThingLink’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, ThingLink has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. ThingLink may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Third-Party Links and Information
- Third Party Materials. The Service may contain links to third-party websites, information, products, materials, or services (together, “Third Party Materials”) that are not owned or controlled by ThingLink. ThingLink does not vet, control, endorse or assume any responsibility for any such Third Party Materials,. We have not reviewed, and cannot review, all of the material, including computer software, made available through Third Party Materials, and cannot therefore be responsible for that Third Party Material’s content, use or effects. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. ThingLink disclaims any responsibility for any harm resulting from the use of Third Party Materials by Users of our Service, or from any downloading by those Users of content there posted.
- YouTube API Services. The Service may use YouTube API Services to allow you to add Third Party Materials from YouTube to your User Content. By adding Third Party Materials from YouTube via the Service you agree to be bound by YouTube Terms of Service.
- No Liability for Third Parties. You expressly relieve ThingLink from any and all liability arising from your use of any Third Party Materials, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of Users who create advertisements using the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such User. You agree that ThingLink shall not be responsible for any loss or damage of any sort relating to your dealings with such Users.
- Responsibility for Content. ThingLink has not reviewed, and cannot review, all of the material, including computer software, posted to our Service, and cannot therefore be responsible for that material’s content, use or effects. By operating our Service, ThingLink does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful, or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Our Service may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. Our Service may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. ThingLink disclaims any responsibility for any harm resulting from the use by visitors of our Service, or from any downloading by those visitors of content there posted.
- Indemnity. You agree to defend, indemnify and hold harmless ThingLink and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties set forth in this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
- Representations and Warranties; Disclaimers.
- Representations and Warranties. You represent and warrant that your use of our Service:
- Will be in strict accordance with this Agreement;
- Will comply with all applicable laws and regulations (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection); and
- Will not infringe or misappropriate the intellectual property rights of any third party.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THINGLINK OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, THINGLINK, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE THINGLINK CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THINGLINK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL THINGLINK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THINGLINK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL THINGLINK, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO THINGLINK FOR THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE HEREUNDER OR ONE HUNDRED EURO ($100.00)., WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THINGLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Who You Are Contracting With, Governing Law and Venue; User Disputes
- The information in the table below describes who you are contracting with under this Agreement, who you should direct notices to under this Agreement, what law will apply in any dispute arising out of or in connection with this Agreement, and where and how such disputes will be resolved, depend on where you are domiciled.
|If you are domiciled in:||You are contracting with:||Notices to ThingLink should be addressed to:||The governing law is:||Exclusive forum for resolution of disputes is:|
|The United States of America||ThingLink, Inc. a Delaware corporation||
470 Ramona Street, Palo Alto, CA 94301
|California and controlling United States federal law||Mandatory, binding arbitration in Santa Clara County, California, U.S.A. as set forth in Section 13(e) below.|
|Any other country||ThingLink Oy, a corporation formed in Finland||
Business ID 2329185-9
VAT ID FI23291859
Lapinlahdenkatu 16, 00180 Helsinki, Finland
Attn: Legal Helsinki, Finland
|Arbitration in Helsinki, Finland, in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce.|
- Manner of Giving Notices to ThingLink. Except as otherwise specified in this Agreement, all notices to ThingLink related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) confirmed delivery by courier service, or (d), except for notices of termination or an indemnifiable claim, the day of sending by email.
- Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
- Legal Fees and Costs. The prevailing party in any action arising from or relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs, including, without limitation, arbitration fees and fees of experts.
- Arbitration for Users Domiciled in The United States. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THINGLINK. If you are domiciled in a country for which arbitration is designated in Section 13(a) above as the exclusive forum for dispute resolution, then you agree to first contact us at info@ThingLink.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute you have with us after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and ThingLink agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights by arbitration.
- Class Action / Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THINGLINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ThingLink without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Entire Agreement / Severability. This Agreement, together with any amendments and any additional agreements you may enter into with ThingLink in connection with the Service, shall constitute the entire agreement between you and ThingLink concerning the Service. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) the applicable Order Form, (2) any additional terms or addenda applicable to specific versions of the Service, and (3) this Agreement. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and ThingLink’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Contact. Please contact us at info@ThingLink.com with any questions regarding this Agreement.