This agreement (hereinafter, the "Agreement") between Thoughtful Presence, Inc. (hereinafter, “Thoughtful Presence”, "us" or "we") and you sets forth the terms and conditions which govern your use of the Thoughtful Presence Website (hereinafter, the "Site") and/or the services (hereinafter, the "Services") thereon which are provided by Thoughtful Presence.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE AND/OR SERVICES. BY ACCESSING OR USING THE SITE AND/OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. THOUGHTFUL PRESENCE MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA E-MAIL. YOUR USE OF ANY OF THE SITE AND/OR SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES.
1. Limited License; Use of Services
Thoughtful Presence grants to you a limited personal, non-exclusive and non-transferable right and license to access the Site and use the Services thereon. Unless otherwise specified in writing, the Services are for your personal and non-commercial use.
Thoughtful Presence shall contain, without limitation, Email services, review and message boards and various other message communications.
2. Prohibited Activities
In connection with your use of the Site and/or the Services, you acknowledge and agree that you will not:
a. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Site or the Services;
b. access the Site or Services by any means other than through the standard industry-accepted or Thoughtful Presence-provided interfaces;
c. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another person's right of privacy or publicity;
d. impersonate any person or entity, including without limitation, any Thoughtful Presence official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
e. post or transmit any material that contains a virus or corrupted data;
f. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
g. use of any Site or Service's communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
h. post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
i. violate any applicable local, state, national or international law;
j. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
k. delete or revise any material posted by any other person or entity;
l. manipulate or otherwise display the Site and/or the Services by using framing or similar navigational technology;
m. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any Thoughtful Presence product or Service if you are not expressly authorized by such party to do so; or
n. use the Site and/or the Services for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site or the Services in any manner that could damage, disable, overburden or impair Thoughtful Presence’s servers or networks, or interfere with any other user's use and enjoyment of the Site and/or the Services. Furthermore, you may not attempt to gain unauthorized access to any of the Site, Services, accounts, computer systems or networks connected to Thoughtful Presence through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site or the Services.
3. Billing Policies
If you choose to purchase a Thoughtful Presence product, you will be asked by Thoughtful Presence or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide Thoughtful Presence or such third party with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchase of the product. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes.
8. Accounts, Passwords and Security
If any of the Site or Services require you to open an account, you must complete the registration process by providing Thoughtful Presence with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to Thoughtful Presence which is untrue, inaccurate, not current or incomplete, Thoughtful Presence reserves the right to terminate this Agreement and your continued access and use of the Site and/or the Services.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify Thoughtful Presence immediately of any unauthorized use of your account or any other breach of security. Thoughtful Presence will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by Thoughtful Presence or another party due to someone else using your account or password.
9. Disclaimer Regarding Links
Thoughtful Presence may provide links to other websites or third party resources (referred to as the "Linked Site"). Thoughtful Presence provides these links as a convenience, but we neither control nor endorse these Linked Site, nor has Thoughtful Presence reviewed or approved the content which appears on the Linked Site. Thoughtful Presence is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any Linked Site. You acknowledge and agree that Thoughtful Presence shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Site.
10. Dealings with Third Parties
Your participation, correspondence or business dealings with any third party found on or through our Site and Services, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Thoughtful Presence shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
11. Proprietary Rights
You acknowledge and agree that the Site and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and are the sole property of Thoughtful Presence or its licensors. You further acknowledge and agree that any content contained in advertisements or information presented to you through advertisers concerning Thoughtful Presence or otherwise is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, " Submission Materials") or by posting such Submission Materials on the Site, you hereby grant to us and our designees a worldwide, non-exclusive, sub-licenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to Thoughtful Presence shall be fully paid-up and royalty free. In addition, under no circumstances shall Thoughtful Presence have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of all or any portion of Thoughtful Presence business through a merger, sale or transfer of all or substantially all of the assets of Thoughtful Presence, nor shall the sale of advertising on any of the Site give rise to any obligation to pay a fee to Subscribers.
None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on Thoughtful Presence’s part and we shall not be liable for any use or disclosure of any such Submission Materials.
12. Copyright Policy
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by Thoughtful Presence infringe your copyright, you, or your agent may send to Thoughtful Presence a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Thoughtful Presence actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to Thoughtful Presence a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details.
Thoughtful Presence’s Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows
Designated Agent: John Cummins
Address of Agent: 415 North LaSalle Suite 600, Chicago, IL 60654
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
14. Disclaimer of Warranties
THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THOUGHTFUL PRESENCE AND ITS AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, or (iv) THAT ANY SOFTWARE, SERVICES, SITE OR SERVER(S) ON WHICH THE SERVICES AND SITE ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE AND THE SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE ENTIRELY AT YOUR OWN RISK.
15. Limitation of Liability
NEITHER THOUGHTFUL PRESENCE NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES; (ii) ANY CONTENT CONTAINED ON THE SITE AND/OR THE SERVICES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITE AND/OR THE SERVICES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITE; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITE OR THE SERVICES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITE OR THE SERVICES, or (vii) ANY OTHER MATTER RELATING TO THE SITE AND/OR THE SERVICES. IN NO EVENT SHALL THOUGHTFUL PRESENCE 'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY OF THE SERVICES OR THE SITE.
You agree to indemnify, defend, and hold Thoughtful Presence and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including reasonable attorneys' fees and disbursements) which arise directly or indirectly out of or from (i) your breach of this Agreement, (ii) any allegation that any materials that you submit to Thoughtful Presence or post on any forums (e.g., message boards, chat rooms) infringe or otherwise violate the copyright, trade secret, trademark or other intellectual property rights of a third party, and (iii) your access or use of the Site and/or the Services. This Section 16 shall survive in the event this Agreement is terminated for any reason.
17. Jurisdictional Issues
Thoughtful Presence makes no representation or warranty that the content and materials on the Site and/or the Services are appropriate or available for use in locations outside the United States. Those who choose to access the Site or use the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. Thoughtful Presence reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Site and/or the Services to any person, geographic area, or jurisdiction we so desire, and to limit the quantities of any such Service or products that we provide.
This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that Thoughtful Presence, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Site or Services, and remove and discard any content within the Site, at any time and for any reason. You agree that any actions taken under this Section 18 may be effective without prior notice to you. In the event of termination, however, those Sections in this Agreement which provide for continuing obligations on your part shall survive indefinitely.
19. General Information
This Agreement constitutes the entire agreement and understanding between you and Thoughtful Presence and governs your use of the Site and the Services, superseding any prior agreements between you and Thoughtful Presence. This Agreement and the relationship between you and Thoughtful Presence shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of law provisions. You and Thoughtful Presence irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of Cook, in the State of Illinois, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. The failure of Thoughtful Presence to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severed herefrom and shall not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. However, we may assign this Agreement to any third party whom we choose without your consent. No waiver by Thoughtful Presence of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.
20. Gift Card Use
Thoughtful Presence Gift Cards must be redeemed toward the purchase of eligible products on www.thoughtfulpresence.com. Any unused balance will be credited back to the recipient in the form of a store voucher to be used for future purchase on www.thoughtfulpresence.com If an order exceeds the amount of the Thoughtful Presence Gift Card, the balance must be paid with a credit card.
No cash or other substitution may be made, except by Thoughtful Presence, who reserves the right to substitute a prize with another prize of equal or greater value if the prize is not available for any reason as determined by Thoughtful Presence in its sole discretion. The winner is responsible for any taxes and fees associated with receipt or use of a prize.
Thoughtful Presence Gift Cards cannot be reloaded, resold, transferred for value, redeemed for cash or applied to any other account, except to the extent required by law.
We are not responsible if Thoughtful Presence Gift Card is lost, stolen, destroyed or used without your permission.
Your use of a Thoughtful Presence Gift Card indicates your acceptance of the Thoughtful Presence Terms and Conditions which can be viewed at www.thoughtfulpresence.com/terms-of-use.
If you have questions or concerns about this Agreement, you can contact us at firstname.lastname@example.org.
Last Modified: July 19, 2013