By using the ThoughtWorks on-line community (the “Community”) that ThoughtWorks, Inc. (“Company”, “us”, or “we”) provided on our website, currently located at http://community.thoughtworks.com (the “Website”), you agree to be bound by these Terms of Service (this "Agreement"), whether or not you register as a member of the Community (“Member”). The ThoughtWorks services (the “Services”) consist of the Community and the Website.
If you wish to become a Member, communicate with other Members, and make use of the Service, read this Agreement and follow the instructions in the registration process. This Agreement sets out the legally binding terms for your membership and may be modified by ThoughtWorks from time to time. Any modifications shall be effective upon posting by ThoughtWorks on the Website. The ThoughtWorks Privacy Policy (http://community.thoughtworks.com/privacy) is hereby incorporated by reference into this Agreement.
1. ELIGIBILITY. THE SERVICES ARE INTENDED SOLELY FOR ACCESS AND USE BY INDIVIDUALS THAT ARE (1) AUTHORIZED BY THOUGHTWORKS, AND (2) EIGHTEEN (18) YEARS OF AGE OR OLDER. BY ACCESSING AND USING THE SERVICES, YOU ARE CERTIFYING THAT YOU ARE AUTHORIZED BY THOUGHTWORKS AND AT LEAST EIGHTEEN (18) YEARS OLD. By using the Services, you represent and warrant that all the information you provide about your identity is true and accurate and you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. If you are merely surfing or browsing through the Website and have not yet registered to become a Member, your use of the Website is still subject to this Agreement; if you do not agree to this Agreement, do not use the Services.
2. PASSWORD. When you sign up to become a Member, you will also be asked to choose a username and a password for your Member account. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Member account, username, or password of another Member at any time. You agree to notify us immediately if you suspect any unauthorized use of your Member account or access to your password. You are solely responsible for any and all use of your Member account.
3. TERM. This Agreement will remain in full force and effect while ThoughtWorks offers the Community and while you use the Services and/or are a Member. You may terminate your membership at any time by using the “Delete Account” button found in the Community. ThoughtWorks may terminate your access to the Website or Community at any time, and may terminate your membership for any reason effective upon sending notice to you at the email address you provide in your application for membership or such other email address as you may later associate with your membership. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2, 4, 5, 7, 9-12, 14, 16, 17, and 18.
4. PROPRIETARY RIGHTS IN CONTENT OF THOUGHTWORKS. ThoughtWorks and its suppliers and licensors own and retain all proprietary rights in the Services, including all Tools. “Tools” means all structures, tools, and settings related to core objects in the Community (including, but not limited to, "Hives", "Types", and "Users" as those terms are used within the Community), and any improvements, modifications, or derivative works to any of the foregoing. The Services contain the copyrighted material, trademarks, and other proprietary information (“Intellectual Property”) of ThoughtWorks, its suppliers and licensors, and other third parties. Except for Intellectual Property which is in the public domain or for which you have been given written permission or an explicit license grant, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such Intellectual Property and the provision of such Intellectual Property to you through the Services does not transfer to you or any third party any rights, title or interest in or to such Intellectual Property, including, without limitation, any intellectual property rights in any Content and material included therein. To the extent you obtain any ownership rights in or to Tools or intellectual property rights related to Tools, you hereby assign all such rights to ThoughtWorks.
5. CONTENT POSTED ON THE SERVICES. You understand and agree that ThoughtWorks may (but is not obligated to) review any content, communication, information, Intellectual Property, material, messages, photos, URLs, profiles and the like (collectively, "Content") that is published or displayed (hereinafter, "posted") on the Services and delete any such Content that in the sole judgment of ThoughtWorks violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of other Members or third parties. You are solely responsible for the Content that you post on the Services, or transmit to other Members or third parties, and therefore ThoughtWorks has no obligation to correct any bugs, defects or errors in such Content or to otherwise support or maintain it. Content that you are planning to post to or download from the Services should be checked for viruses to ensure that they are free of detectable virus strains. Any Content that is found to contain a virus will be deleted without notice. Any Members who have made an obvious attempt to pass along a virus with the intent to infect the systems of the other Members will have their access to the Services terminated. You agree that you are responsible for any viruses contained in the Content that you post to the Services and agree to indemnify others who are damaged by a virus contained in Content posted by you. By posting Content to any area of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to ThoughtWorks an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform (including by means of a digital audio or video transmission), and otherwise use Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing in connection with providing Services. In addition, you represent and warrant that you have the right to post the Content and you will not post any illegal or prohibited Content and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any patent, trademark, trade secret, copyright or other proprietary rights). If you would like to assert copyright ownership to Content you submit, then you must mark the Content with a copyright notice, year, and owner(s) name(s), e.g. “Copyright YEAR MEMBER NAME.” If you do not mark Content as indicated above, then you irrevocably waive your right to bring an infringement action for violation of your copyright in that Content against any party who obtains such Content from the Services.
6. USE OF SERVICES. You must use the Services in a manner consistent with any and all applicable laws and regulations. You may not include in your Member account any telephone numbers, street addresses, last names, URLs or email addresses of third parties. You may not engage in advertising to, or solicitation of, other Members to buy or sell any products or services through the Services. You may not transmit any chain letters or junk email to other Members or third parties. It is also a violation of these Terms if you use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, ThoughtWorks reserves the right to restrict the number of emails and other communications (including sharing of Content) which a Member may send to other Members in any twenty-four (24) hour period to a number which ThoughtWorks deems appropriate in its sole discretion. ThoughtWorks and its suppliers use reasonable efforts to protect the confidentiality of Content you post on the Services. However, you acknowledge that there are certain parts of the Services in which posted Content will be available to other users or publicly available, and you should know that no company, including ThoughtWorks and its suppliers can eliminate security risks with respect to the posted Content. Content from other Members, advertisers, and other third parties is made available to you through the Services. Because ThoughtWorks does not control such Content, you agree that ThoughtWorks is not responsible for any such Content, including advertising and information about third party products or services. Because ThoughtWorks does not have control over such Content, ThoughtWorks makes no guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and ThoughtWorks assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Members, advertisers or third parties.
7. COPYRIGHT COMPLAINTS
ThoughtWorks respects the intellectual property rights of others. If you believe that any of your content or works of authorship has been copied in a way that constitutes copyright infringement, please contact ThoughtWorks’ agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at privacy@thoughtworks.com. Please provide our Agent with the following Notice:
• Identify the copyrighted work or other intellectual property that you claim has been infringed;
• Identify the material on the ThoughtWorks site that you claim is infringing, with enough detail so that we may locate it on the Community;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
• Your address, telephone number, and email address; and
• Your physical or electronic signature.
ThoughtWorks’ Agent will forward this information to the alleged infringer.
8. YOUR MEMBER ACCOUNT. Any Content used for or photographs posted by you in your Member account may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post a photograph of another person without that person’s permission.
9. MEMBER DISPUTES. You are solely responsible for your interactions with other Members. ThoughtWorks reserves the right, but has no obligation, to monitor disputes between you and other Members.
10. RELEASE. To the extent permitted under applicable laws, you hereby release ThoughtWorks and its licensors and suppliers from any liability related to: (a) any incorrect or inaccurate Content posted on the Services, whether caused by any user of the Services or Member, or by any of the equipment or programming associated with or utilized in the Services; (b) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or Content players on account of technical problems or traffic congestion on the Internet or at any website, or combination thereof, including injury or damage to user’s and/or Member’s or to any other person's computer related to or resulting from participating or downloading materials in connection with the Services; (c) any loss or damage caused by Content posted on the Services or transmitted by and to Members, or any interactions between users of the Services and/or Members, whether online or offline; and (d) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, Website user or Member communications. You waive any and all provisions, rights and benefits conferred by California Civil Code § 1542, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor,” or by any law of any jurisdiction, which is similar, comparable or equivalent to California Civil Code § 1542.
11. DISCLAIMER. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, THE SERVICES ARE PROVIDED "AS-IS" AND AS AVAILABLE AND THOUGHTWORKS, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY WARRANTY AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT AND THOUGHTWORKS AND ITS SUPPLIERS AND LICENSORS DO NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION ON LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, THOUGHTWORKS AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING ALSO LOST PROFITS) ARISING FROM YOUR USE OF THE SERVICES, EVEN IF THOUGHTWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THOUGHTWORKS’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (1) ANY AMOUNT PAID BY YOU TO THOUGHTWORKS FOR THE SERVICES; AND (2) FIFTY U.S. DOLLARS (US$50). NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE THOUGHTWORKS’ LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THOUGHTWORKS OR ITS AGENTS OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
13. U.S. EXPORT CONTROLS. Any software provided by ThoughtWorks through the Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Services or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
14. GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by the laws of the State of Illinois without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and ThoughtWorks agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in Chicago, Illinois and the federal courts located in the Northern District of Illinois in such legal action or proceeding. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English, or any other language the parties may mutually agree upon; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, ThoughtWorks may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. You shall always comply with all the international and domestic laws, ordinance, regulations and statutes that are applicable to your use of the Services.
15. ELECTRONIC COMMUNICATIONS. The communications between you and ThoughtWorks use electronic means, whether you visit the Website or send us emails, or whether ThoughtWorks posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ThoughtWorks in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ThoughtWorks provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your non-waiveable rights.
16. INDEMNITY. You agree to indemnify and hold ThoughtWorks, its subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.
17. OTHER. This Agreement contains the entire agreement between you and ThoughtWorks regarding the use of the Services. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Notwithstanding any other provisions herein, no party will be deemed as a third-party beneficiary to this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of ThoughtWorks to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement.
18. COPYRIGHT/TRADEMARK INFORMATION. Copyright © 2008-2009, ThoughtWorks, Inc. All rights reserved. The trademarks, logos and service marks ("Marks") displayed on the Services are our property or the property of third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Mark.