The following are the terms and conditions for use of the Thingamajiggen ("Thingamajiggen," "us," "we," or "our") proprietary online service (the "Service"). Please read them carefully before using the Service.
BY COMPLETING THE REGISTRATION PROCESS, YOU (the terms "you," "your" or "yours" include the person or entity that is registered with the Service as well as any third parties accessing the Service on your behalf ) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE (the "Agreement"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
To register for the Service and create an account, you must complete the registration process by providing Thingamajiggen with complete and accurate information as prompted by the registration form, including your e-mail address, a username and password. You shall protect your password and take full responsibility for your own, and third party, activities that occur under your account. You agree to notify Thingamajiggen immediately of any unauthorized use of your account or any other breach of security.
From time to time, Thingamajiggen may find it necessary to access your account. For instance, Thingamajiggen may access your account for support, maintenance, or security-related reasons. In such an event, Thingamajiggen will, if practicable, provide you notice of its intent to use your username and password to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access.
Account Activation and Expiration
As a condition of your subscription to the Service, you agree to pay all applicable service fees agreed to by Thingamajiggen and you, which may include an initial non-refundable deposit (the "Service Fees"). The Service Fees will be billed no more frequently than once daily. Unless otherwise stated, all fees are stated in U.S. Dollars. All Service Fees are payable monthly by charging the credit card that you provided during the registration process. You hereby certify to us that you are at least 18 years of age and that you are the cardholder of the credit card you provided during registration. We reserve the right to deactivate your access to the Service for failure to pay applicable Service Fees. If your credit card expires during the term of this Agreement, you hereby authorize us to charge any card issued to you as a replacement for such expired credit card.
You can cancel your account at any time.
Subject to your compliance with the terms and conditions of this Agreement, Thingamajiggen hereby grants you a limited, revocable, non-exclusive, non-transferable license to use the Service provided by Thingamajiggen solely for your own individual business purposes.
Except as expressly set forth herein, you shall not (i) use, reproduce, modify or create derivative works of the Service, or (ii) transfer, lease, lend, sublicense, use for timesharing or service bureau purposes, resell or otherwise distribute or allow third party access to all or any portion of the Service, including, but not limited to, by sharing your access username and/or password.
By providing us with your e-mail address, you agree to receive all required notices electronically at that e-mail address. It is your responsibility to update or change that address, as appropriate.
You hereby grant to us a worldwide, nonexclusive right to (i) use and display, and make available to third parties for use and display, in connection with the Service any information, materials, logos, data or content that you choose to provide us or display for the Service or on our website and (ii) contact on your behalf the customers whose information you provide to us in connection with the Service.
ACCOUNT INFORMATION FROM THIRD PARTY SITES
With the Service, You may direct us to retrieve information regarding your accounts with third-party providers with which you (i) have a relationship, (ii) maintain an account, or (iii) engage in online services ("Account Information"). Thingamajiggen makes no effort to review the Account Information for any purpose, including, but not limited to, accuracy, legality or non-infringement. Thingamajiggen is not responsible for the products and services offered by or on third-party websites.
Thingamajiggen cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or loss of data or other service interruptions. Thingamajiggen cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any data or communications. For example, when displayed through the Service, Account Information is only as fresh as the time shown, which reflects when the information is obtained from the relevant websites. Such information may be more up-to-date when obtained directly from such sites. You can refresh your Account Information through the Service, in the manner prescribed in the associated instructions.
As a condition of your use of and access to the Service, you agree to pay the Service Fees. Thingamajiggen may change the Service Fees for any or all of the Service at any time and from time to time, effective immediately upon your receipt of notice of such fee change; provided, that, such fee changes will only be effective as to usage of the Service that occurs after the effective date of the relevant fee change.
CONSENT TO USE OF DATA
You agree that Thingamajiggen and its affiliated companies and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including, but not limited to, technical information about your computer, system, links, traffic, application software and peripherals, that is gathered through use of the Service to facilitate the provision of updates to the Service, support and other services to you and other users related to the Service, and to verify compliance with the terms of this Agreement. Thingamajiggen may use this information, as long as it is collected anonymously in a form that does not personally identify you, to improve our Service or to provide other services or technologies to you or our other users. In addition, you agree that Thingamajiggen and its affiliated companies and agents may collect, maintain, process and use the personal information of your customers that is supplied to us (or obtained by us) in connection with the Service in order to contact such customers on your behalf and to improve the Service.
Each party to this Agreement (a "Party") shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information, except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without such other Party's prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party.
The term "Confidential Information" shall mean any information disclosed by one Party to the other Party in connection with this Agreement that is disclosed in writing or orally and is identified as "Confidential" or which a Party should reasonably believe is treated as confidential by such other Party, and any other information disclosed by Thingamajiggen that relates to the Service (including your password) that is not publicly known. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) was developed independently by the receiving Party without any use of the Confidential Information of the other Party or by employees of the receiving Party who have no knowledge of such Confidential Information; (ii) becomes known to the receiving Party, without restriction, from a third party without breach of this Agreement or any other obligation of confidentiality; (iii) was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the receiving Party; (iv) was rightfully known to the receiving Party as demonstrated by prior written records at the time of disclosure; or (v) is disclosed by agreement of the Parties or pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving Party shall provide prompt notice thereof to the other Party and shall use commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.
PROPRIETARY RIGHTS; RESTRICTIONS ON USE
Except for the limited license expressly granted herein, Thingamajiggen expressly reserves all right, title and interest in and to the Service, the content of the Thingamajiggen website, and all processing, analytics, data and other software and technology used by Thingamajiggen in the provision of the Service ("Thingamajiggen Technology"), including, without limitation, any derivatives, improvements, enhancements or extensions of the Thingamajiggen Technology conceived, reduced to practice or otherwise developed by or on behalf of Thingamajiggen, all of which are valuable assets of Thingamajiggen, together with any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
You shall not: (i) use, or allow the use of, the Service or any Thingamajiggen Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Service in any manner that is inconsistent with user documentation, if any, supplied to you by Thingamajiggen or inconsistent with Thingamajiggen's standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse-engineer, hack into, or compromise any aspect of the Service or Thingamajiggen Technology, or attempt to access data of any other customer of Thingamajiggen; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Thingamajiggen; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service; or (vi) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our websites, without our express written consent, which may be withheld in our sole and absolute discretion.
You agree to indemnify, hold harmless and defend Thingamajiggen and its officers, directors, employees, agents, and affiliates, at your expense, against any and all third party claims, actions, proceedings, and suits brought against Thingamajiggen or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by Thingamajiggen or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Service or the Thingamajiggen website, (iii) your unauthorized use of the Service, (iv) any content, copyrighted material, data, products, services, or other materials you supply to Thingamajiggen or display in connection with the Service, or (v) your violation of any third party rights, including, without limitation, any copyright, privacy, or property rights. In such a case, Thingamajiggen will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any such claim, suit, or action. Thingamajiggen reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
The information, reports and services included in or available through the Service may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Thingamajiggen and/or its respective suppliers may make improvements and/or changes in the Service at any time, without obligation to notify any person or entity of such changes.
Thingamajiggen does not represent or warrant that (i) the Service will be error-free or accessible at all times, (ii) defects will be corrected, (iii) the Service or the server that makes it available, are free of viruses or other harmful components, or (iv) the use or the results of the use of the Service or the materials made available as part of the Service will be correct, accurate, timely, or otherwise reliable. You specifically agree that Thingamajiggen shall not be responsible for unauthorized access to or alteration of your data.
THE SERVICE IS PROVIDED "AS IS" AND Thingamajiggen MAKES NO WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Thingamajiggen DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION OR PRODUCTS PROVIDED THROUGH THE SERVICE. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
You represent and warrant that (i) you will comply with all applicable State and Federal laws; (ii) you will not post content and other media that contains or promotes, or links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, products, services or activities; (iii) you own or have the legal right to use and distribute all content, data, copyrighted material, products, and services displayed in connection with the Service or provided by you to Thingamajiggen; (iv) you shall not offer or promote products or services (or websites or links to websites) containing any pornographic, racially or ethnically discriminatory, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content; and (v) you shall at no time use Thingamajiggen's proprietary software or any materials provided by Thingamajiggen or any third party in the Service in any manner other than that which is specifically contemplated herein.
LIMITATIONS OF LIABILITY
Thingamajiggen WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF Thingamajiggen HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, Thingamajiggen'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED $500 (FIVE HUNDRED UNITED STATES DOLLARS).
Either party may terminate this Agreement at any time and for any reason. Upon any termination of this Agreement, (i) Thingamajiggen will cease providing you the Service; (ii) any outstanding balance payable by you to Thingamajiggen will become immediately due and payable; (iv) you will not be entitled to any refunds of any Service Fees or any other fees; and (v) all of your historical data will no longer be available to you.
MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Thingamajiggen reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the Thingamajiggen app or website. You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Thingamajiggen or (ii) you continue to use the Service after Thingamajiggen has posted updates to the Agreement or to any policy governing the Service.
You will not use the Service in any way or for any purpose that would violate, or would have the effect of violating, any applicable governmental laws, rules or regulations or any rights of any third parties, including, without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity. Without limiting the generality of the foregoing, you expressly acknowledge that you will not use the Service in violation of the CAN-SPAM Act of 2003, as amended. You also agree to comply with any and all applicable third party network terms and conditions and associated program rules and policies.
MISCELLANEOUS; APPLICABLE LAW AND VENUE
Thingamajiggen shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond Thingamajiggen's reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between Thingamajiggen and you concerning this subject matter and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the State of California without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in the State of California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Service is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals.
A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights hereunder without Thingamajiggen's prior written consent, and any such attempt is void. The relationship between Thingamajiggen and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.