General Terms and Conditions
ThinkWave currently provides users with access to a wide variety of tools, including, but not limited to: ThinkWave Grades Online, ThinkWave Educator, ThinkWave Administrator and ThinkWave Web Educator.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new ThinkWave properties, shall be subject to the TOS. In consideration of use of the Service, you acknowledge and agree that you must: (a) provide for your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including a computer and modem. You also understand and agree that the Service is provided "AS-IS" and that ThinkWave assumes no responsibility for the timeliness, deletion, mis-delivery, or failure to store any user data, communications or personalization settings.
By using ThinkWave (including, but not limited to ThinkWave Grades Online, ThinkWave Educator, ThinkWave Administrator and ThinkWave Web Educator), including any applets, software, and content contained therein, you agree that use of the Service is entirely at your own risk. THE SERVICE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE. SPECIFICALLY, THINKWAVE DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES AND (2) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. NEITHER THINKWAVE NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF SERVICE OR INABILITY TO GAIN ACCESS TO OR USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE RESPECTIVE LIABILITY OF THINKWAVE, ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, AND CONTENT OR SERVICE PROVIDERS RESPECTIVE LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH STATE LAW.
ThinkWave is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing at this Web Site, and is the copyright owner or licensee of the content and/or information on this Web Site including but not limited to any screens appearing at the Site. You may not download and/or save a copy of any of the screens except as otherwise provided in these Terms of Service, for any purpose. However, you may print a copy of the information on this Site for your personal use or records. If you make other use of this Site, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to penalties. ThinkWave does not grant any license or other authorization to any user of its trademarks, registered trademarks, service marks, or other copyrightable material or other intellectual property, by placing them on this Web Site. ThinkWave reserves the right to change any information on this Web Site including but not limited to revising and/or deleting features or other information without prior notice. Clicking on certain links within this Web Site might take you to other web sites for which ThinkWave assumes no responsibility of any kind for the content, availability or otherwise. (See "Links from and to this Website" below.) The content presented at this Site may vary depending upon your browser limitations.
ThinkWave's Proprietary Rights
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by ThinkWave or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. ThinkWave grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by ThinkWave for use in accessing the Service.
Software License Agreement
Any software that is made available to download or use from this server is the copyrighted work of ThinkWave and/or its suppliers. Use of the software is governed by the terms of the end user license agreement, which accompanies or is included with the software. An end user may not install any software that is accompanied by or includes a license agreement, unless he or she first agrees to the license agreement terms. The software is made available for downloading solely for use by end users according to the license agreement. Any reproduction or redistribution of the software not in accordance with the license agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
The software available on this site is not warranted, except and only to the extent specified in the license agreement accompanying the software.
Except as warranted in the license agreement, ThinkWave, Inc. hereby disclaims all warranties and conditions with regard to the software, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement.
Links to Third Party Sites
The links included within the service may let you leave the service web sites ("linked sites"). The linked sites are not under the control of ThinkWave and ThinkWave is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. ThinkWave is not responsible for webcasting or any other form of transmission received from any linked site. ThinkWave is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by ThinkWave of the site or any association with their operators.
If you wish to provide a commercial-free environment for student-users of the site, please learn about ThinkWave's subscription option at the URL, www.thinkwave.com.
Conditions of Use
As a condition of your use of the Service, you warrant to ThinkWave that you will not use the Service for any purpose that is unlawful or prohibited by these terms, conditions, and notices. The Service is provided to individuals only and for personal use only. Any unauthorized commercial use of the Service, or the resale of its services, is expressly prohibited. You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account or password, including the content of your transmissions through the Service. By way of example, and not as a limitation, you agree not to:
- Use the Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information.
- Advertise or offer to sell or buy any goods or services for any non-personal purpose.
- Harvest or otherwise collect information about others, including email addresses, without their consent.
- Create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message.
- Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a Service member any directory of the Service members or other user or usage information or any portion thereof other than in the context of your use of the Service as permitted under the TOS.
- Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs.
- Transmit or upload any material that contains software or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own or control the rights thereto or have received all necessary consents.
- Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks.
- Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means.
- Violate any applicable laws or regulations including, without limitation, laws regarding the transmission of technical data or software exported from the United States through the service.
- Interfere with another member's use and enjoyment of the Service or another individual's or entity's use and enjoyment of similar services.
ThinkWave has no obligation to monitor the Service or any user's use thereof or retain the content of any user session. However, ThinkWave reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
Disclaimers/Limitation of Liability
The information and services included in or available through the Service may include inaccuracies or typographical errors. Changes are periodically added to the information herein.
ThinkWave and/or its respective suppliers may make improvements and/or changes in the Service at any time. ThinkWave does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service or the server that makes it available, are free of viruses or other harmful components. ThinkWave does not warrant or represent that 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 ThinkWave shall not be responsible for unauthorized access to or alteration of your transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through the Service. You specifically agree that ThinkWave is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. You specifically agree that ThinkWave is not responsible for any content sent using and/or included in the Service by any third party.
THINKWAVE AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE SERVICE FOR ANY PURPOSE. THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THINKWAVE AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
You agree to indemnify and hold ThinkWave, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of your use of or conduct on the Service.
ThinkWave may terminate your access to any part or all of the Service and any related service(s) at any time, with or without cause, with or without notice, effective immediately, for any reason whatsoever.
ThinkWave may also terminate or suspend your account for inactivity, which is defined as failing to sign-in to the Service for an extended period of time, as determined by ThinkWave. The amount of time that ThinkWave currently considers as an "extended" period of time is one year. Upon termination of the Service, your right to use the Service immediately ceases. If you wish to terminate your account, your only recourse is to discontinue the use of the Service. ThinkWave shall have no obligation to maintain any content in your account or to forward any unread or unsent messages to you or any third party.
No Spam; Damages
ThinkWave will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, because damages are often difficult to quantify, if actual damages cannot be reasonably calculated then you agree to pay ThinkWave liquidated damages of $5 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your account, otherwise you agree to pay ThinkWave's actual damages, to the extent such actual damages can be reasonably calculated.
Participation in Promotions of Advertisers
Any dealings with Advertisers on the Service or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Advertiser or other third party. ThinkWave shall not be responsible or liable for any part of any such dealings or promotions.
Proprietary Rights to Content
You acknowledge that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or electronically distributed, commercially produced information presented to you by the Service, by ThinkWave, or ThinkWave's Advertisers or other content providers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may make a copy of this content for your personal, non-commercial use only, provided that you keep all copyright and other proprietary notices intact. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way content available through the Service and its associated Web sites, including code and software.
Modifications to Terms of Service, Member Policies
ThinkWave reserves the right to change the TOS or policies regarding the use of the Service at any time and to notify you by posting an updated version of the TOS on this Web site.
You are responsible for regularly reviewing the TOS. Continued use of the Service after any such changes shall constitute your consent to such changes.
This agreement is governed by the laws of the State of California, and the United States of America. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and ThinkWave as a result of this agreement or use of the Service. ThinkWave's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of ThinkWave's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by ThinkWave with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and ThinkWave with respect to the Service (excluding the use of any software which may be subject to an end-user license agreement) and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and ThinkWave with respect to the Service. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and ThinkWave agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The section titles in the TOS are solely used for the convenience of the parties and have no legal or contractual significance.
It is the express will of the parties that this agreement and all related documents have been drawn up in English. C'est la volonte expresse des parties que la presente convention ainsi que les documents qui s'y rattachent soient rediges en anglais.
IN NO EVENT SHALL THINKWAVE BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM THIS SERVER.