1. Basic Rules and Rights We Are Granting.
1.1. License Grant for Website. Subject to your agreement and continuing compliance with these Terms and any other relevant Lit Thinking policies, Lit Thinking grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Website.
1.2. Use of the Website: The following restrictions apply to the use of the Website:
(a) You shall not engage in any act that Lit Thinking deems to be in conflict with the spirit or intent of the Website, including but not limited to circumventing or manipulating these Terms;
(b) You may not use the Website in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(c) You shall not use the Website to engage in any illegal conduct;
(d) You shall not reproduce, distribute or publicly display any content you access through the Website unless such content is clearly marked as “public” and you have been given the right to view such content; and
(e) You shall not do anything with any content you access through the Website that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.4. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Website in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law.
(b) Policies. You acknowledge that Lit Thinking has in place policies, that supplement or in addition to these Terms, regarding use of the Website available at www.litthinking.com and that you agree to abide by such policies and that such policies are in addition to any obligations you have under these Terms.
(c) Activity Prohibitions Regarding Use of Account. You agree that you will not, under any circumstances do or assist in any of the following activities:
(i) Modify or cause to be modified any files or content that are used to maintain the Website, without the express prior written consent of Lit Thinking;
(ii) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Website (each a “Server”) or (2) the use or enjoyment of the Website by any other person;
(iii) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Website, or other attempts to disrupt the Website or any other person’s use or enjoyment of the Website;
(iv) Gain, or attempt to gain, unauthorized access to the Website or the Servers or networks connected to the Website by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Website);
(v) Harass, abuse, harm, bully, intimidate or advocate, threaten or incite harassment, bullying, intimidation, abuse or harm of another person or group of persons, including Lit Thinking employees or customer service representatives;
(vi) Interfere or attempt to interfere with the proper functioning of the Website or connect to or use the Website in any way not expressly permitted by these Terms;
(vii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Website, whether through the use of a network analyzer, packet sniffer or other device;
(viii) Make any automated use of the Website or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(ix) Bypass any robot exclusion headers or other measures we take to restrict access to the Website or use any software, technology or device to send content or messages, scrape, spider or crawl the Website, or harvest or manipulate data from, through, or relating to the Website;
(x) Use, facilitate, create or maintain any unauthorized connection to the Website, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Website or (2) any connection using programs, tools or software not expressly approved in writing by Lit Thinking;
(xi) Upload or transmit (or attempt to upload or to transmit), without Lit Thinking’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.5. Suspension and Termination:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY YOUR ACCESS TO THE WEBSITE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS, YOUR RIGHTS TO USE THE WEBSITE ARE EXPIRED OR BECOME TERMINATED OR YOUR USE OF THE WEBSITE IS RELATED TO ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE WEBSITE. LIT THINKING SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION OF YOUR ACCESS TO THE WEBSITE.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE ACCESS TO THE WEBSITE OR PORTIONS THEREOF AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE WEBSITE IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING LIT THINKING’S INTELLECTUAL PROPERTY RIGHTS OR THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(c) Right to Cease Hosting Website. Lit Thinking reserves the right to stop hosting the Website or part of the Website at any time if Lit Thinking believes that the continued hosting of the Website or part of the Website will or may cause harm to Lit Thinking or you or may result in any violation of applicable law by either Lit Thinking or you. If Lit Thinking elects to stop hosting and/or
support the Website or part of the Website, the license granted hereunder to you to use the Website or a part thereof will automatically terminate.
1.6. Intellectual Property Ownership in the Website. The Website, and all of its related components and contents, (including without limitation, any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Lit Thinking or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
2. Your Content and Communications.
2.1. Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Website. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any information, including without limitation chat, text or voice communications.
3.1. Third Party Notices. We may be required to provide you with certain notices and content in connection with your use of the Website. You agree that we may provide you with such notices and content by either emailing you such notices to the email address that we have on file for you or by providing you with a link to a website where such notices and content will be posted.
3.2. Deletion of Certain Content. Information provided by Lit Thinking through the Website may be deleted from the Website after a set time period and you may not be able to view such information after deletion.
4. Third Party Advertising.
4.2. Links to Third Party Sites and Dealings with Advertisers. Lit Thinking may provide links on the Website to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Lit Thinking makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Website, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Lit Thinking and may collect data or solicit personal information from you. Lit Thinking is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Lit Thinking of these linked sites.
5. Updates to the Website.
You understand that the Website undergoes frequent changes. Lit Thinking may require that you accept updates to the Website in order to continue using the Website. You acknowledge and agree that Lit Thinking may update the Website without notifying you.
6. Disclaimer; Limitations; Waivers on Liability; Indemnification.
6.1. Disclaimer of Warranties.
(a) WEBSITE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). NO GUARANTEES ARE MADE REGARDING WHO MAY VIEW ANY CONTENT YOU POST OR HOW OTHERS WILL EVALUATE YOU OR ANY CONTENT YOU POST.
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER LIT THINKING NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “LIT THINKING PARTIES”) WARRANT THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. LIT THINKING DOES NOT GUARANTEE THAT ANY INDIVIDUAL WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT THAT THE WEBSITE INTENDED TO NOT BE AVAILABLE TO SUCH INDIVIDUAL. LIT THINKING DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED ON THE WEBSITE WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. LIT THINKING DOES NOT WARRANT THAT THE WEBSITE WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY LIT THINKING OR THROUGH THE WEBSITE.
6.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE WEBSITE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE LIT THINKING PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE WEBSITE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE LIT THINKING PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE LIT THINKING PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER A USERS OF THE WEBSITE AND
OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE WEBSITE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE LIT THINKING PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID LIT THINKING IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID LIT THINKING ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH LIT THINKING IS TO STOP USING THE WEBSITE.
(e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
6.3. Indemnification. You agree to defend, indemnify, save, and hold the Lit Thinking Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Website, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Lit Thinking reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Lit Thinking and you agree to cooperate with Lit Thinking’s defense of these claims. Lit Thinking will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of the Website.
7. Dispute Resolution.
7.1. General. If a dispute arises between you and Lit Thinking, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Lit Thinking agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 7.2, you and Lit Thinking agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 7, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
7.2. Exclusions from Arbitration. YOU AND LIT THINKING AGREE THAT ANY CLAIM FILED BY YOU OR BY LIT THINKING IN SMALL CLAIMS COURT OR BY LIT THINKING RELATED TO PROTECTION OF LIT THINKING’S OR ANY LIT THINKING LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 7.
7.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 7, YOU MUST NOTIFY LIT THINKING IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO LIT THINKING TERMS ADMINISTRATOR, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH LIT THINKING THROUGH ARBITRATION.
7.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND LIT THINKING SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
7.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Lit Thinking elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 7 will govern in the event they conflict with the arbitration rules identified below.
7.6. Arbitration Procedures. Because the software and/or service provided to you by Lit Thinking concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Lit Thinking as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Lit Thinking or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
7.7. Location of Arbitration. You or Lit Thinking may initiate arbitration in either Orange County, FL, or the county in which you reside. If you initiate arbitration in the county of your residence, Lit Thinking may transfer the arbitration to Orange County, FL, provided that Lit Thinking agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
7.8. Severability. If any clause within this Section 7 (other than the Class Action Waiver clause of Section 7.4) is found to be illegal or unenforceable, that clause will be severed from this Section 7 and the remainder of this Section 7 will be given full force and effect. If the Class Action Waiver (Section 7.4) clause is found to be illegal or unenforceable, this entire Section 7, except for this Section 7.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND LIT THINKING EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
8. General Provisions.
8.3. Assignment. Lit Thinking may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Lit Thinking; any purported assignment or delegation in violation of this Section 8.3 is void.
8.4. Supplemental Policies. Lit Thinking may publish additional policies related to specific services such as forums, contests, loyalty programs and other features and services. You acknowledge that we may email such additional policies to you at the email address you have provided us for use in conjunction with the Website and that you will regularly check such email. Your use, if any, of such services is subject to such specific policies and these Terms.
LIT THINKING 3259 Progress Drive Orlando, FL 32826 Attn: [Notices Administrator]
8.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Lit Thinking are of a unique and irreplaceable nature, the loss of which shall irreparably harm Lit Thinking and which cannot be replaced by monetary damages alone, so that Lit Thinking shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Website, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Website or any content or other material used or displayed through the Website.
8.9. Force Majeure. Lit Thinking shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Lit Thinking, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Lit Thinking’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.