Website Terms and Conditions of Use
By accessing this Website, accessible from www.smarthinkinginc.com, you are agreeing to be bound by these Website Terms and Conditions of Use and agree that you are responsible for compliance with any applicable local laws affecting or otherwise relating to your use of this Website. If you disagree with any of these terms, you are prohibited from accessing this site.
THE FOLLOWING TERMS AND CONDITIONS OF USE GOVERN USE BY ALL VISITORS TO OUR WEBSITE. PLEASE READ THE FOLLOWING CAREFULLY. BY ACCESSING OUR WEBSITE YOU ARE AGREEING TO ABIDE BY THESE TERMS AND CONDITIONS OF USE.
1. Intellectual Property Rights
This Website and the intellectual property rights contained therein are protected by law. You should assume that all content, images, and materials appearing on or accessible through this Website (collectively the "Content"), are and shall remain the sole property of Smarthinking Inc. and/or its licensors. Both United States and international copyright laws and treaties protect such Content. You may not use, reproduce, display, or sell any Content without our prior written consent. Transmission or reproduction of any Content or other protected items beyond what is allowed by fair use or other exemptions requires written permission from the copyright holder. Smarthinking Inc. does not offer legal advice about fair use or other exemptions and reserves all available rights to protect against copyright infringement.
The trademarks, logos, and service marks displayed on this Website (collectively, the "Marks") belong to Smarthinking Inc. and/or our affiliates or third parties which have licensed those rights to Smarthinking Inc. Smarthinking Inc. and such third parties respectively retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their respective owner's prior written consent. All other trademarks, product names, and company names and logos appearing on or accessible through this Website are the property of their respective owners.
You are specifically restricted from all of the following:
a. copying, modifying, publishing, selling, sublicensing and/or otherwise commercializing any Content or violating copyright law with respect to any of the Content, including without limitation creating any derivative works or translations thereof;
b. using this Website in any way that is or may be damaging to the Website;
c. using this Website in any way that impacts access to the Website, or which otherwise imposes an unreasonable or disproportionately large load on the infrastructure;
e. engaging in any data mining, data harvesting, data extracting, or any other similar activity in relation to this Website;
f. using any robot, spider, or other automated device, process, or means to access this Website;
g. entering or uploading any data or using any services available through this Website without the authorization of the owner of any related intellectual property or other rights relating to such use, including but not limited to domain name, e-mail, or privacy rights;
h. incorporating any portions of this Website or any related services, including data obtaining using such services, into your own website; and
i. using this Website to engage in any advertising or marketing.
3. Disclaimers and Limitation of Liability.
ALL THE MATERIALS ON SMARTHINKING INC.'S WEBSITE ARE PROVIDED "AS IS". SMARTHINKING INC. DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION, MATERIALS, OR ANY CONTENT PROVIDED ON OR THROUGH THE WEBSITE. SMARTHINKING INC. HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE USE OF THIS WEBSITE IS AT YOUR OWN RISK. SMARTHINKING INC. DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, OR OTHER MATERIAL ACCESSIBLE THROUGH THE WEBSITE WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. FURTHERMORE, SMARTHINKING INC. DOES NOT MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS WEBSITE OR OTHERWISE RELATING TO SUCH MATERIALS OR ANY SITES LINKED TO THIS WEBSITE. THE MATERIALS APPEARING ON SMARTHINKING INC.'S WEBSITE MAY INCLUDE TECHNICAL, TYPOGRAPHICAL, OR PHOTOGRAPHIC ERRORS. SMARTHINKING INC. WILL NOT PROMISE THAT ANY OF THE MATERIALS IN THIS WEBSITE ARE ACCURATE, COMPLETE, OR CURRENT. SMARTHINKING INC. MAY CHANGE THE MATERIALS CONTAINED ON THE WEBSITE AT ANY TIME WITHOUT NOTICE. SMARTHINKING INC. DOES NOT MAKE ANY COMMITMENT TO UPDATE THE MATERIALS.
SMARTHINKING INC. WILL NOT BE HELD LIABLE FOR ANY DAMAGES THAT MAY ARISE FROM YOUR USE OR INABILITY TO USE THE WEBSITE OR ANY MATERIALS ON THE WEBSITE, EVEN IF SMARTHINKING INC. OR AN AUTHORIZE REPRESENTATIVE OF THIS WEBSITE HAS BEEN NOTIFIED, ORALLY OR WRITTEN, OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTION DOES NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU.
YOU HEREBY RELEASE SMARTHINKING INC., ITS SUBSIDIARIES, AND AFFILIATED COMPANIES, THE DEVELOPERS OF ANY CONTENT ON THE WEBSITE, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM ANY AND ALL OBLIGATIONS, LIABILITY, AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. SMARTHINKING INC. AND THEIR TOTAL LIABILITY FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THESE TERMS AND CONDITIONS OF USE, OR YOUR USE OF ANY CONTENT ON THIS WEBSITE SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY YOU TO US, BUT IN NO EVENT TO EXCEED $500.
You agree that you shall fully defend and indemnify Smarthinking Inc., its subsidiaries, and affiliated companies and their respective officers, directors, owners, agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations, and other provisions set forth in these Terms and Conditions of Use, including, but not limited to, your warranties or your violation of Smarthinking Inc. or a third party's intellectual property rights. You further agree to defend, indemnify, and hold harmless Smarthinking Inc., its subsidiaries and affiliated companies and their respective its officers, directors, owners, agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of these Terms and Conditions of Use. You agree that Smarthinking Inc. shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
5. Content Changes
Smarthinking Inc. reserves the right to add to, eliminate, or modify any or all of the Content from its Website at any time.
6. Linked Sites
8. Your Privacy
9. Governing Law
Any claim related to Smarthinking Inc.'s Website shall be governed by the laws of the State of Florida without regards to its conflict of law provisions.
ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THESE TERMS AND CONDITIONS OF USE WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINED EXCLUSIVELY BY BINDING ARBITRATION IN MIAMI, FLORIDA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") AND IN ACCORDANCE WITH THE RULES OF AAA. Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. Any action to confirm or vacate such an award must be brought in any state or federal court of competent jurisdiction in Miami, Florida. You consent to personal jurisdiction and venue in such courts, and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that we shall be entitled to collect our attorneys' fees, costs, and other expenses in the event that we act to enforce this arbitration and forum selection clause, regardless of whether we prevail in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbitrator (or arbitrators) with respect to legal matters shall be limited only by the statutory and common law of the State of Florida and the federal law of the United States of America. There are no exceptions to these mandatory arbitration provisions except as set forth herein.
Nothing herein shall preclude Smarthinking Inc. from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce these Terms and Conditions of Use and/or to remedy a breach thereof, or (ii) bringing an action to enforce these Terms and Conditions of Use or the provisions hereof in the event AAA will not or cannot arbitrate a particular dispute. Any action under this Agreement may be brought in any court of competent jurisdiction located in Miami, Florida, and each party consents to the in personam jurisdiction of such Courts for the purpose of any such action or proceeding. Each party hereby waives all rights it has or which may hereafter arise to contest such exclusive jurisdiction of such Courts.
In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR YOUR USE OF THIS WEBSITE, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND SMARTHINKING INC. THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS OF USE, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived. Neither you nor Smarthinking Inc. may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to these Terms and Conditions of Use, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND SMARTHINKING INC. ACKNOWLEDGE THAT THIS PROVISION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
10. Miscellaneous Provisions
a. Severability. If any of the provisions in these Terms and Conditions of Use are found to be illegal, invalid, or unenforceable by any court of competent jurisdiction, the rest of these Terms and Conditions of Use shall remain in full force and effect
b. Successors and Assigns. Neither these Terms and Conditions of Use, nor the rights pertaining hereto, may be assigned, resold, or otherwise transferred in whole or in part by you without Smarthinking Inc.’s prior written consent, which may be withheld for any or no reason. Notwithstanding the above, these Terms and Conditions of Use shall be binding upon your successors and assigns, if any. Smarthinking Inc. may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
c. Delays. Smarthinking Inc.will not be responsible to you for any delay or failure to comply with its obligations under these Terms and Conditions of Use if the delay or failure arises from any cause beyond its reasonable control.
d. No Waiver. If you breach these Terms and Conditions of Use and Smarthinking Inc. takes no action, Smarthinking Inc. will not be deemed to have waived any rights or remedies it may have and Smarthinking Inc. will still be entitled to use its rights and remedies in other situations where you are in breach.
e. Viruses. Smarthinking Inc. uses reasonable efforts to ensure that this Website is free from viruses and other malicious or harmful content. However, Smarthinking Inc. cannot guarantee that your use of this Website (including any content accessible from it) will not cause damage to your computer or other device. It is your responsibility to ensure that you have the right equipment (including anti-virus software) to use this Website safely. Except as may be required by applicable law, Smarthinking Inc. shall not be liable to any person for any loss or damage they suffer as a result of viruses or other malicious or harmful content that they access from or via this Website.
f. Availability. Smarthinking Inc. endeavors to ensure that the Website remains available at all times. However, we cannot guarantee that this Website will operate continuously. We therefore cannot accept any liability for any failure or non-availability of the Website.
g. No Agency. Nothing in these Terms and Conditions of Use is intended to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Smarthinking Inc. (or any of its affiliates) and you, nor shall anything in these Terms and Conditions of Use be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Smarthinking Inc. (or any of its affiliates) and you. Nothing in these Terms and Conditions of Use creates a contract for services.
i. Entire Agreement. These Terms and Conditions of Use constitutes the entire agreement with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral between us and you related to the subject matter hereof.
Copyright © 2023 Smarthinking Inc. All Rights Reserved.
Last updated on August 28, 2023