Thing Labs (“Thing Labs” or “we”) provides our website accessible at www.plinky.com (the “Site”) through which users can create and manage their content and social internet experience and enjoy other dynamic products and services (the “Services”). Please read the following terms and conditions (“Terms of Service”) carefully. These Terms of Service govern your access to and use of the Site and the Services and Thing Labs Content (defined below) and constitute a binding legal agreement between you and Thing Labs.
Certain areas of the Site (and your access to or use of certain Services or Thing Labs Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Site, Services or Thing Labs Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site, Services or Thing Labs Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR BY ACCESSING OR USING THE SITE OR THE SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED AS A MEMBER. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR PLINKY CONTENT.
Modification
Thing Labs reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of the page. By continuing to access or use the Site or the Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Site and Services.
Eligibility and Plinky Account Registration
In order to access certain features of the Site and Services, and to post any User Content (defined below) on the Site or through the Services, you must register to create an account (“Plinky Account”) and become a “Member”. To become a Member you must be at least 13 years old.
During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Thing Labs reserves the right to suspend or terminate your Plinky Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. If you are not a Member you may browse all areas of the Site other than those limited to Members.
You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Plinky Account, whether or not you have authorized such activities or actions. You will immediately notify Thing Labs of any unauthorized use of your Plinky Account.
Privacy
See Plinky’s Privacy Policy at http://www.plinky.com/privacy for information and notices concerning Plinky’s collection and use of your personal information.
Certain Definitions
Certain types of content are made available through the Site and Services. “Plinky Content” means, collectively, the text, data, graphics, images, Plinky trademarks and logos and other content made available through the Site and Services, including any technology or code making up a Plinky widget, excluding User Content. “User Content” means the, text, data, graphics, images, photos, video or audiovisual content, hypertext links and any other content uploaded, transmitted or submitted by a Member via the Site or Services, including through use of a Plinky widget.
Ownership
The Site, Services and Plinky Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Service, Plinky and its licensors exclusively own all right, title and interest in and to the Site, Services and Plinky Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Plinky Content.
Plinky Content License
Subject to your compliance with the terms and conditions of these Terms of Service, Thing Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Plinky Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Plinky Content, except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Thing Labs or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
User Content
By making available any User Content through the Site and Services, you hereby grant to Thing Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site and the Services. Thing Labs does not claim any ownership rights in any such User Content and nothing in these Terms of Service will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Thing Labs the rights in such User Content, as contemplated under these Terms of Service; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Thing Labs’s use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Copyrighted Materials: No Infringing Use. You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. Thing Labs has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see the Plinky Copyright and IP Policy for further information.
Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at contact@plinky.com or through the “Help” section of the Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Thing Labs and you hereby irrevocably assign to Thing Labs and agree to irrevocably assign to Thing Labs all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Thing Labs’s request and expense, you will execute documents and take such further acts as Thing Labs may reasonably request to assist Thing Labs to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
General Prohibitions
You agree not to do any of the following while using the Site, Services or Plinky Content:
Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
Use, display, mirror, frame or utilize framing techniques to enclose the Site, or any individual element or materials within the Site, Plinky’s name, any Plinky trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without Thing Labs’s express written consent;
Access, tamper with, or use non-public areas of the Site, Thing Labs’s computer systems, or the technical delivery systems of Thing Labs’s providers;
Attempt to probe, scan, or test the vulnerability of any Thing Labs system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Thing Labs or any of Thing Labs’s providers or any other third party (including another user) to protect the Site, Services or Plinky Content;
Attempt to access or search the Site, Services or Plinky Content or download Plinky Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Thing Labs or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Plinky trademark, logo URL or product name without Thing Labs’s express written consent;
Use the Site, Services or Plinky Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Plinky Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Plinky Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Thing Labs will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site security issues, to the fullest extent of the law. Thing Labs may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Thing Labs has no obligation to monitor your access to or use of the Site, Services or Plinky Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Thing Labs reserves the right, at any time and without prior notice, to remove or disable access to any Plinky Content, including, any User Content, that Thing Labs, in its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Site or Services.
Links
The Site may contain links to third-party websites or resources. You acknowledge and agree that Thing Labs is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Thing Labs of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Termination and Plinky Account Cancellation
Without limiting other remedies, Thing Labs may at any time suspend or terminate your Plinky Account and refuse to provide access to the Site or Services. In addition, Thing Labs may notify authorities or take any actions it deems appropriate, without notice to you, if Thing Labs suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Service or any policies or rules established by Thing Labs; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Plinky Users, Plinky or any other third parties or the Site or Services.
You may terminate your Plinky account at any time and for any reason by selecting this option on your account information page. Upon any termination by a Member, the related account will no longer be accessible.
After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Service will immediately cease. Thing Labs will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER SUBMISSIONS OR TRANSLATED CONTENT) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, Thing Labs will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.
Any suspension, termination or cancellation will not affect your obligations to Thing Labs under these Terms of Service (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
Disclaimers
THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PLINKY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
PLINKY MAKES NO WARRANTY THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PLINKY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PLINKY OR THROUGH THE SITE, SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Indemnity
You agree to defend, indemnify, and hold harmless Thing Labs, its officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services or Plinky Content, or your violation of these Terms of Service.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT REMAINS WITH YOU. NEITHER Thing Labs NOR ANY OTHER party involved in creating, producing, or delivering the Site, Services or Plinky Content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the SITE, ServiceS OR CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not PLINKY has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT Thing Labs IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, Thing Labs WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICES.
In no event will Thing Labs’s aggregate liability arising out of or in connection with THESE TERMS OR From the use OF or inability to use the SITE, Services or content exceed one hundred U.S. dollars ($100)*. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PLINKY AND YOU
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Plinky used herein are trademarks or registered trademarks of Thing Labs. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Controlling Law and Jurisdiction
These Terms of Service and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in San Francisco, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Entire Agreement
These Terms of Service constitute the entire and exclusive understanding and agreement between Thing Labs and you regarding the Site, Services and Plinky Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Thing Labs and you regarding the Site, Services and Plinky Content.
Assignment
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Thing Labs’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices
You consent to the use of: (i) electronic means to complete these Terms of Service and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms of Service or your use of the Site or Services. Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (x) by Thing Labs via email (in each case to the address that you provide) or (y) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
General
The failure of Thing Labs to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Thing Labs. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
Contacting Thing Labs
If you have any questions about these Terms of Service, please contact Thing Labs at contact@plinky.com.
