TERMS AND CONDITIONS OF USE

 

Agreement

Use of the www.thinkalittledifferent.com website (the "Site") constitutes acceptance of the following Terms and Conditions of Use ("Term and Conditions", "Agreement") and Privacy Policy.

 

This Agreement is between you ("You", "you", "User") and Think a Little Different, Inc. ("Company", "We"). Company has the right to alter this Agreement or these Terms and Conditions at any time. This may be done by updating the pages you are looking at now. Please visit this page periodically in order to check the changes that may have been made to these Terms and Conditions. Every time you use this site, you are agreeing to the Terms and Conditions as they exist at that time.

Please read the following sections carefully, as they constitute a legally binding agreement between you and Company.

 

If you do not wish to be bound by the Terms and Conditions contained herein then you are prohibited from using the Site.

 

Registration

You shall, as a condition precedent to use of the Site and Services, register with Company on this website and provide all information required by Company.

 

In registering for a User name, you acknowledge and represent that you are an individual who can form legally binding contracts under applicable law.

 

You hereby represent and warrant that any and all information provided is and shall be true, correct, accurate and complete in all material respects. You further represent and warrant that the individual end-user accepting these Terms and Conditions is a duly authorized agent, employee or representative of organization, firm or entity identified upon registration and that acceptance of these Terms and Conditions is and shall be binding upon User and upon such individual person.

 

Falsifying or omitting contact information such as a member’s name, address, and/or telephone number when registering is not permitted. Users are also not permitted to use fax or disconnected numbers as a telephone number.

 

The Site allows you the opportunity to correct or update your information. Company may reject an applicant if we determine (in our sole discretion) that the User is not an appropriate User or is not making, nor has in the past made, proper use of the Services or the Site.

 

User Obligations

Passwords and Security: User is responsible for and shall at all times maintain the confidentiality of its user names and passwords. Users may not permit use of the Services by a third party, and such action would be a violation of this Agreement. If User is a company or other entity, only a primary contact or an authorized representative may represent User and User is responsible for ensuring that its primary contact and authorized representative maintains the confidentiality of User names and passwords and otherwise complies with this Agreement. If there is a breach of security through User's account, User must immediately notify our customer service department and change User's password. User will be liable for any unauthorized use of the Site or the Services.

Compliance with Law: User shall comply with all applicable laws, statutes, ordinances and regulations when using the Site or the Services, including not selling, offering for sale, buying or offering to buy any item that is illegal to sell through the Internet or otherwise or any item that potentially infringes or violates any third party's rights, including copyright, patent, trademark, trade secret, rights of publicity or privacy, or other proprietary rights.

 

When using the Site you must obey all applicable federal, state and local laws. This Site was created and will be operated from the United States. Any use of this Site that violates any applicable laws will be grounds for discontinuing your rights to this Site.

 

 

Membership

The day you ordered marks the beginning of your free trial membership and your ability to access the Site. The length of your free trial is the one offered to you at the time of purchase, and the membership fee ("Membership Fee"), which may include applicable sales tax, is the amount you agreed to pay at the time of purchase. You may have been offered, and agreed to purchase, a membership plan that did not include a free trial.

At the time of purchase you may have agreed to and been charged one or more separate one time fees such as an activation fee, enrollment or processing fee, shipping and handling or trial period fee, as applicable.

At the time you ordered you may have been offered continuity or a fixed term membership. If you ordered a continuity membership the Membership Fee is for access to the Site and Service during the period stated to you at the time of purchase and is not refundable. After the free trial, and every month thereafter until you cancel, your Membership Fee, or its monthly equivalent, will be automatically billed to your credit card (or debited from your checking account, if you authorized that option). You can cancel your continuity membership at any point and have no further obligation.

 

If you used a credit card you may be subject to a preauthorization at the time you order. The preauthorization is not a charge to the credit card. However, the then applicable monthly subscription charge may be reserved against your available credit card limit. Contact your credit card issuing financial institution for details.

If you ordered a fixed term membership the one time Membership Fee is for use of the Site and Services during the entire term of the membership, and will be automatically billed to your credit card (or debited from your checking account, if you authorized that option) after the free trial.

 

Cancellation. Cancellations must be done by telephone. Please call us at 1-800-353-4586 if you are subscribed to the Site and Services. Such notification of cancellation must be received ten (10) business days prior to your next billing date to ensure that your account is not billed.

 

 

Services

Upon Company’s acceptance of User's application for registration, Company shall provide User with access to the Site and Services subject to the Terms and Conditions of this Agreement. The term "Services" refers to any or all of the following services provided by us, our agents or our contractors authorizing access to and use of our Site, including providing User with passwords and access to secure sections of the Site.

Restrictions on Use of Service

User shall refrain from renting, leasing, sublicensing, assigning, selling, loaning or otherwise transferring User’s User name or password.

 

No Fraud or Manipulation: User shall not manipulate or misuse the Site or the Services in any other way.

Offensive, Libelous or Unlawful Messages: Copyright and Other

No Offensive Content: You agree that you will not use, or allow others to use, your account to post, transmit, promote, or facilitate the distribution of any threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind.

No Illegal Material Or Encouragement Of Illegal Behavior: You agree that you will not use, or allow others to use, your account to post, transmit, promote, or facilitate the distribution of any unlawful or illegal material, including but not limited to material that would constitute or encourage a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law. You will not use our Services or our Site to commit a crime, or to plan, encourage or help others to commit a crime.

No Violation Of Copyright, Trademark Or Trade Secret Rights: You agree that you will not use the Services to publish, post, distribute or disseminate another's proprietary information, including but not limited to trademarks, trade secrets or copyrighted information, without the express authorization of the rights holder.

No "Spamming," Advertisements Or Chain Letters: You agree that you will not use, or allow others to use, your account to post, transmit, promote, or facilitate the distribution of any unsolicited advertising (including but not limited to mass or bulk e-mail), promotional materials or other forms of solicitation to other individuals or entities. You will not post or transmit requests for money to persons not personally known to you except as a normal transaction carried out through the Services offered on the Site, petitions for signature, chain letters or letters relating to pyramid schemes. You will not post or transmit any advertising, promotional materials or any other form of solicitation. We reserve the right, in our sole discretion, to determine whether such post or transmission constitutes an advertisement, promotional material or any other form of solicitation in violation of this provision.

No "Hacking": You agree that you will not use, or allow others to use, your account to unlawfully access other computers or services, or to cause a disruption of service to other on-line users.

No System Disruption. You may not use, or allow others to use, your account to cause disruption of the normal use of the system by others including without limitation disrupting our backbone network, nodes, or services.

No Impersonation of Others: You agree that you will not impersonate another user or otherwise falsify one's user name in e-mail or in any post or transmission to any newsgroup or mailing list or other similar groups or lists.

No "Viruses": You agree that you will not use, nor allow others to use, your account to intentionally transmit computer "viruses," or other harmful software programs and that you will use your best efforts to prevent the unintentional transmission of such viruses or other harmful software programs.

Right to Remove: Company reserves the right not to post any data or materials to, or to remove any data or materials from, the Site, without notice to a User and without liability to Company. User hereby releases Company from any claims or allegations that may result from such removal.

Any violations of the preceding provisions will result in charges to the User equal to $150 per hour (or the standard applicable rate at that time) for all time spent by each member of Company personnel required to address any damages caused by or resulting from User's actions which violate these provisions.

If User is a California resident, User waives California Civil Code Section 1592, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor. At the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

 

WARRANTIES AND LIMITATIONS OF LIABILITY

THE INFORMATION AND SERVICES PROVIDED ON THIS SITE ARE PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, ARISING FROM THE USE OF OR INABILITY TO USE THE SITE OR BREACH OF ANY EXPRESSED OR IMPLIED WARRANTY, EVEN IF COMPANY OR ITS AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. COMPANY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DAMAGE WILL NOT, IN ANY EVENT, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER BASIS, EXCEED THE FEES PAID BY YOU FOR USE OF THE SITE AND SERVICES GIVING RISE TO SUCH LIABILITY. NO INFORMATION PROVIDED BY COMPANY OR ITS RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. COMPANY MAKES NO WARRANTY THAT THE INFORMATION ON THIS SITE OR ON THE INTERNET GENERALLY WILL BE UNINTERRUPTIBLE OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THE SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

COMPANY DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION DISCLOSED ON THIS SITE OR OTHER MATERIAL ACCESSIBLE FROM THIS SITE. IN NO EVENT SHALL COMPANY, OR ITS AFFILIATES, 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 OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE INFORMATION ON THIS SITE OR THE INTERNET GENERALLY.

 

USER HEREBY RELEASES AND FOREVER DISCHARGES COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL MANNER OF LIABILITY, CLAIMS, COUNTERCLAIMS, DEMANDS, SETOFFS, DAMAGES, OR CAUSES OF ACTION, WHICH YOU NOW HAVE OR WHICH MAY HEREAFTER ACCRUE, WHETHER HERETOFORE ASSERTED OR UNASSERTED, KNOWN OR UNKNOWN, ARISING OUT OF, OR IN ANY WAY RELATING TO YOUR USE OF THIS SITE OR THE INFORMATION PROVIDED THEREIN, SPECIFICALLY INCLUDING BUT NOT LIMITED TO ANY CLAIMS BASED IN WHOLE OR IN PART UPON THE ALLEGED NEGLIGENCE OF COMPANY, IN OPERATING THE SITE OR OTHERWISE.

 

COMPANY HEREBY DISCLAIMS ANY RESPONSIBILITY FOR USER'S INFRINGEMENT OF OR DAMAGE TO THIRD PARTY INTELLECTUAL PROPERTY.

 

Note that rights with respect to warranties, express and implied, vary from jurisdiction to jurisdiction and you may have legal rights in your jurisdiction, for which you will be solely responsible for asserting. The terms of this section will survive the termination of this Agreement.

 

Indemnity

User hereby agrees to, at its own expense, indemnify, defend and hold harmless Company and its affiliates, agents, employees, directors, shareholders and contractors (the "Indemnified Parties") from and against any loss, cost, or damages, liability and/or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement based on information, data, files or other content submitted by User, (b) any fraud, manipulation, or other breach of this Agreement by User, or (c) any third-party claim, action or allegation brought against an Indemnified Party arising out of or relating to a dispute between one or more Users.

Termination of Agreement

Suspension or Termination for User's Breach: Company may, at its discretion and at any time, suspend use of the Site and/or the Services (including access) and/or terminate this Agreement.

Termination by User:

This Agreement is and shall be effective from the date of full execution and shall remain in force until terminated. User may terminate this Agreement at any time by notifying Company in writing with thirty (30) days notice of such notification. User’s access to the Site and Services may be terminated automatically if User materially fails to comply with any terms or conditions of this Agreement.

Effect of Termination: Termination is additional to all other legal or equitable remedies available to either party. Upon termination of this Agreement for any reason, User shall cease to use any Content provided under this Agreement.

 

 

Enforcement

No termination, regardless of reason or cause, shall relieve User from the continued performance of its obligations established under this Agreement. The obligations imposed by this Agreement on User shall be enforceable both at law and in equity, by injunction, restraining order, specific performance, damages, lost profits and other remedies, and without any requirement that Company post any bond or other security or prove actual damages. User hereby waives any such bond or security requirements. Should Company incur attorneys' fees or costs in order to enforce this Agreement, whether or not a legal action is instituted, Company shall be entitled to recover such attorneys' fees and costs from User, in addition to all other rights and remedies it may have at law or in equity. The right of Company to obtain any such remedy or remedies shall be cumulative and not alternative and shall not be exhausted by any one or more uses thereof.

 

Title and Confidentiality

All information provided by you to Company in connection with the Site (and not otherwise covered as confidential under Company’s Privacy Policy) shall be deemed not to be confidential and Company will not protect any information provided by User from disclosure. Company shall be free to use, disclose and distribute such information to third parties without any limitation.

 

User agrees and acknowledges the title and full ownership rights to the Site and Services provided to User pursuant to this Agreement, including, without limitation, all intellectual property rights therein and thereto, and any copies User makes, remain with Company. It is agreed the Site and Services are the proprietary, confidential, trade secret property of Company, whether or not any portions thereof are or may be copyrighted and User shall take all reasonable steps necessary to protect the confidential nature of the Site as User would take to protect User’s own confidential and trade secret information.

 

User further agrees not to make any disclosure of any or all of the Site and Services (including methods or concepts utilized therein) to anyone, except to employees, agents, or contractors working for User to whom such disclosure is necessary to the use for which rights are granted hereunder.

 

The obligations imposed by this section upon User, User’s employees, agents, and contractors, shall survive and continue after any termination of rights under this Agreement. It shall not be a breach of this Agreement if you are required to disclose or make the Site available to a third party or to a court if the Site is subpoenaed or otherwise ordered by an administrative agency or court of competent jurisdiction to be produced or disclosed.

Content: Intellectual Property Rights

Ownership and Limitations on Use of Services: We retain ownership of all rights, title and interest in and to the Site, the Services and the Content (defined below), subject to User's rights in any User Information. User shall not reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose the Site, Content, Services or access to the Site, Content or Services. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Site without the written permission of Company or such party that may own the trademark. User’s use of the Content or trademarks displayed on the Site, except as provided in this Agreement, is strictly prohibited. Company will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.

Definitions of User Information and Content: By using the Site and the Services, User will have access to information that other Users have provided to us for use in limited situations ("User Information"). User agrees to keep all User Information confidential and to use User Information only for the purposes of communicating with potential Suppliers or Buyers, as appropriate, through and in accordance with the Site. Specifically, User shall not use any User Information to comparison shop outside the Site. The User Information is one component of the Content. In this Agreement, the "Content" also includes any data, information, files, or copyright, trademark and other intellectual property laws that protect graphics that are available on the Site.

Restrictions on Use of the Content: This Agreement and applicable copyright and other laws (including laws regarding confidential information and other proprietary rights) govern use of the Content. The burden of determining that intellectual or proprietary rights do not protect any Content rests with the User. User may make only a limited number of copies of Content for internal use and consideration, so long as any copyright, trademark or other proprietary rights notices are included on those copies and so long as employees who are provided such copies are advised of the restrictions on use under this Agreement. User may use the Content only for investigating the possibility of selling to or buying from other Users goods and/or services. User shall not use any data from the Site on any other web site or in any other directory, including by way of linking to the Content within the Site without our express written permission. If we learn of any User engaging in such activity, we may immediately suspend access to the Site and the Services and/or terminate such User under this Agreement and take such other legal action that we deem appropriate in the circumstances.

User's Information: By submitting a bid in an online auction, or any other information, files or other content to the Site, User agrees that such information becomes "User Information," and grants to Company and Company affiliates, a royalty-free, perpetual, irrevocable, non-exclusive right (including waiver of any applicable moral rights) and worldwide license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Information. User also warrants that it has the right to grant the license to us provided for above. Our use of User Information is subject to our Privacy Policy. [link the Privacy Policy]

 

User’s Responsibility: User hereby agrees not to use any robot, spider or other automatic or manual device or process to interfere or attempt to interfere with the proper working of Company’s Site, nor act as a conduit for others to affect the same result.

Binding Arbitration

In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, and prior to contacting any business bureau, government agency or other entity, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.

The place of arbitration shall be: Salt Lake City, Utah. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. Any award in an arbitration initiated under this clause shall be limited to monetary damages not to exceed the amount paid to Company.

Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Either party may participate in the arbitration by telephone.

 

Availability

The availability of the Services and the Site depends on many factors, including a User's connection to the Internet, the availability of the Internet, and the Internet backbone and equipment that, by its nature, is not fault tolerant. Although Company will attempt to maintain the availability of the Site at all times, other than scheduled or emergency maintenance, Company expressly disclaims any guarantee of availability.

 

General

Advertisers/Third Parties: User's dealings or correspondence with advertisers or third parties featured on or hyperlinked (with permission) to our Site, including the purchase of and payment for goods and services, and any understandings and representations associated with such dealings are solely between User and the advertisers and/or third parties. User agrees that Company is not responsible or liable for any loss incurred by User that results from User's Site or in connection with any hyperlink. Company makes no representations or endorsements in connection with such sites. If User accesses any of the third party sites linked to this Site, it does so entirely at its own risk. Use of any information obtained from such sites is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness. Company cannot comment on or take responsibility for the privacy policies (if any) that apply to any such third party sites.

Governing Law: The laws of the State of Utah (excluding its choice of law rules) will govern the interpretation and enforcement of this Agreement. User hereby consents to personal jurisdiction in the federal and state courts of Utah for any action arising out of or relating to Company or the Services. The federal and state courts of Utah will have non-exclusive jurisdiction over all such actions. In any such action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section will survive any termination of this Agreement.

Sales Outside of the United States: This Site may contain products, merchandise and services that are available in the United States of America or its territories. Because this Site is operated in the State of Utah, Company makes no representation that the Site, its Contents, or the goods or Services offered through it are applicable or appropriate for use or consumption outside of the United States of America or its territories.

System Integrity: User may not use any software, scheme or device to interfere or attempt to interfere with the proper working of the Site. User may not take any action that imposes an unreasonable or disproportionately large load on the Site infrastructure.

 

Notices: Except as explicitly stated otherwise, notices shall be provided by postal mail to Think a Little Different Inc, Attn: Legal Department, 629 E. 730 S. Ste 103 American Fork, UT 84003. Company shall provide notice to the User via the email address provided by User during the registration process. Notice shall be deemed given twenty (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Company may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Company during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.

Sales Taxes, Shipping and Other Sales Terms: If User is a Buyer, User agrees to pay any applicable sales taxes arising out of User's purchase of goods and/or services from a Supplier. Buyers must negotiate all aspects of any sale, such as shipping details and cost, directly with Suppliers.

 

Contact Information: All questions and comments may be addressed by emailing us at support@thinkalittledifferent.com.

 

Consent to Monitoring and Disclosure: Company is under no obligation and does not assume any obligation to monitor the information residing on or transmitted to the Site. However, User hereby agrees that Company may monitor the Site to operate the Site in order to protect the Users of the Site and comply with all laws, regulations or requests from governmental authorities. Company reserves the right to modify or delete any information contained on the Site.

 

This Agreement constitutes the entire Agreement between Company and User and supersedes any prior agreement or understanding, written or oral, relating to the subject matter of this Agreement.

If any provision of this Agreement shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provision of this Agreement or the validity or the enforceability of this Agreement.

All rights and remedies provided herein are cumulative and are in addition to all other rights and remedies available at law or equity.

In the event that either party successfully takes legal action to enforce any provision of this Agreement the unsuccessful party shall pay full costs and expenses of such action, including reasonable attorney's fees.

 

Waiver of any breach or default of this Agreement shall constitute a waiver only as to such particular breach or default and shall not constitute a waiver of any other breach or default. Failure to act by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall not operate as a waiver of any such right, power or remedy, and will not affect the validity of the whole or any part of this Agreement, or prejudice such party's right to take subsequent action.

Neither party shall be held liable for delays in any of its performance resulting from acts of God, war, civil disturbance, court order, labor dispute or any other cause beyond its control.

The relationship of the parties shall be solely that of independent contractors. No partnership, joint venture, employment, agency or other relationship is formed, intended or to be inferred under this Agreement. Neither party to this Agreement shall attempt to bind the other, incur liabilities on behalf of the other, act as agent of the other, or authorize any representation contrary to the foregoing.

This Agreement is binding upon and shall inure to the benefit of the parties, their successors and assigns. However, this Agreement is not assignable by User. This Agreement is personal to the User and neither the Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily, directly or indirectly, assigned or otherwise transferred without the prior written consent of Company. Any unauthorized assignment or transfer shall constitute a breach hereof and shall be voidable by Company.