thinkSuite hereby grants to User a limited, revocable, non-transferrable License for User to access and use the Services on any Internet-accessible device owned or controlled by User. User agrees that the Services contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright laws, and that User will not use such proprietary content, information, or materials in any way whatsoever except for permitted uses of the Services. User may not distribute or make the Licensed Application available over a network where it could be used by multiple devices or multiple persons at the same time, except as specifically provided herein and in accordance with the permissions granted to User pursuant to the level of service purchased by User. User may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application or Services. User may not copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of thinkSuite and its licensors. If User breaches this restriction, User may be subject to prosecution and damages. The terms of this License will govern any upgrades provided by thinkSuite that replace and/or supplement the original Services unless such upgrade is accompanied by a separate license that contradicts or supersedes this License, in which case the terms of such separate license will govern.
User may not use thinkSuite’s name or trademarks without the prior written permission of thinkSuite. thinkSuite may use User’s name, logo, and/or trademarks to identify User as a user of thinkSuite.
User acknowledges and agrees that thinkSuite must retain certain information of User, including User’s email address and user ID, IP address, billing information (name and contact information), payment address and payment details (credit card or bank account information) for invoicing and tracking, product functionality, authorization, task access log and reporting, regardless of whether User pays for any Services or Licensed Application hereunder. Any User request for thinkSuite to delete such User’s email address or user identification information will materially harm User’s use of the Services and the Licensed Application. User agrees to inform and receive consent from any employees or other persons if User uses such employee’s or other person’s email address or other identifying information as User’s identification for tracking purposes hereunder. In addition, thinkSuite may require certain information to be disclosed by User for invoicing purposes and in order to comply with applicable law, including, without limitation, Value Added Tax ID numbers and other verification process information, including, without limitation, billing information (name and contact information), payment address and payment details (credit card or bank account information), which information User agrees to make available to thinkSuite from time to time and authorizes thinkSuite to use and possess in its sole discretion for invoicing purposes and in order to comply with applicable law. User agrees to provide to thinkSuite its email and username for purposes of communication and support. thinkSuite may request User’s password in order to provide such User with support, which password User agrees can be used by thinkSuite in remedying the problem and deleted within 7 days of thinkSuite’s resolution of such User request. In reliance on a legitimate interest, thinkSuite may request additional information from User during User’s use of the Services in order to create a personalized experience for such User from time to time.
Pursuant to the GDPR (as defined below), the obligations of data controllers are distinguished from data processors. A data controller means “the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data” and a data processor means “a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.” User acknowledges and agrees that, unless otherwise explicitly provided herein, User is the data controller of all data and information provided by User or associated with User’s use of the Services or the Licensed Application, including, without limitation, any data imported from any third-party site, application, or software that is integrated with the Licensed Application.
Any feedback, comments, or stories posted or submitted by User regarding thinkSuite, the Services, or the Licensed Application will be published by thinkSuite with User’s consent. User may withdraw its consent from time to time, and within a reasonable amount of time of such request, thinkSuite shall delete or destroy any of such information. After termination of this License in accordance with its terms, any discussion or comments, along with tasks and projects, created or submitted by User inside the Licensed Application will be retained. However, such data will undergo an appropriate process of anonymization. Some of the retained data collected while offering support services will be used, in anonymized form, for the improvement of the Licensed Application.
The License is effective until terminated by User or thinkSuite as provided herein.
For Users who create a trial account only, the “Term” of this License shall commence upon User’s submission of its User information for the creation of a trial account, and shall continue until the expiration of the trial period. If User desires to cancel the trial account prior to expiration, this License will terminate upon thinkSuite’s receipt of such User’s request to terminate this License. For month-to-month Users, the “Term” of this License shall commence upon the receipt by thinkSuite of User’s first payment, and shall continue to renew automatically on a month-to-month basis until User activates the cancellation feature on User’s account management page and properly follows the procedures set forth therein or if thinkSuite provides User with at least five (5) business days’ prior written notice of thinkSuite’s intention to terminate. For year-to-year Users, the “Term” of this License shall commence upon receipt by thinkSuite of User’s first payment, and shall continue to renew automatically for successive one year periods until either party provides the other party with prior written notice of such party’s intention to terminate at least fifteen (15) days prior to the expiration of the then-current Term; provided, however, if User desires to terminate such year-to-year contract prior to the expiration of the Term, User may do so by activating the cancellation feature on User’s account management page and properly following the procedures set forth therein. In such case, User understands, acknowledges, and agrees that any prepaid License Fees shall be forfeited.
Notwithstanding III.2 above, this License may be terminated by either party:
In the event User does not renew this License or this License is otherwise terminated, User shall cease all use of the Licensed Application and shall no longer have access to the Services nor any other future benefits that may be available to thinkSuite customers at that time. thinkSuite promptly will provide User with notification of account termination and a link to download User’s data. User understands, confirms, and acknowledges that User is aware that User’s data will be purged, which shall include the permanent removal of all of the User materials, content, and information, unless otherwise provided in this Agreement, within a reasonable amount of time, in accordance with the following: thinkSuite will keep User’s personal data and uploaded content for so long as necessary to provide the Services and fulfill the transactions User has requested, or for other legitimate purposes; retention periods can vary significantly, depending on the data types, context of interaction between thinkSuite and the User, and the User’s use of the Services and the Licensed Application; the data and content will not be kept longer than reasonably necessary. Upon any cancellation or termination of User’s account, whether by thinkSuite or User, no refunds, reimbursements, or credits of any kind shall be provided except as provided in Section III.2 above or Section III.6 below.
If User desires to terminate this License, User shall cancel User’s account through the account management section of thinkSuite’s application. Cancellation requests provided by phone, physical mail, email, or any other means will not be honored.
If User is a month-to-month user, and User terminates this License as a result of thinkSuite’s breach of this License, except as provided in Section VIII.1 hereof, no further amounts shall be due from User to thinkSuite, and thinkSuite agrees to reimburse User for any payments made to thinkSuite in the 30 days prior to cancellation by User. If User is a year-to-year user and User terminates this License as a result of thinkSuite’s breach of this License, except as provided in Section VIII.1 hereof, thinkSuite shall remit to User the balance of any prepaid License Fees from the date of cancellation through the end of the then-current Term.
User may receive a free trial of the Services (a “Free Trial”). Such Free Trial would be subject to any additional terms that thinkSuite specifies and is only permitted for the period designated by thinkSuite. Users may not use the Free Trial for competitive analysis or any similar purpose. thinkSuite may terminate your right to use the Free Trial at any time and for any reason in its sole discretion without incurring any liability. User understands that any pre-release and beta products made available by thinkSuite (“Beta Versions”) are still under development, may be inoperable or incomplete, and are likely to contain more errors and bugs than generally available Services. thinkSuite makes no promises that any Beta Versions will ever be made generally available. In some circumstances, thinkSuite may charge a fee in order to allow users to access Beta Versions, but the Beta Versions remain subject to this Article IV.1 and this License generally. All information regarding the characteristics, features, or performance of Beta Versions constitutes Confidential Information. To the maximum extent permitted by applicable law, thinkSuite disclaims all obligations and liabilities with respect to a Free Trial, including any support, maintenance, warranty, or indemnity obligations. Upon the expiration of a Free Trial, User shall be required to pay the required License Fee (as hereinafter defined) in order to continue to be able to use the Services.
License Fees. In consideration for the License granted in Article I, subject to any free trial and/or demonstration as provided in Section IV.1 hereof, User agrees to pay to thinkSuite the applicable fee(s) set forth at thinkSuite website > Pricing Page (the “License Fee”). Paying User agrees to pay the fee(s) shown on their Subscription Page in the thinkSuite application.
The fees listed in this License do not include taxes. If thinkSuite is required to pay any sales, use, property, excise, value added, gross receipts, withholding, or other taxes levied on the Services or the Licensed Application under this License or on User’s use thereof, then such taxes shall be billed to and paid by User. This Section does not apply to taxes based on thinkSuite’s net income, franchise taxes, or thinkSuite’s employer contributions and taxes.
User understands that thinkSuite uses a third-party paying agent to process all payments. User understands that until payment is received and verified by the paying agent, User shall not be permitted to use the Services or Licensed Application.
All payments made hereunder are nonrefundable, except for relief to which User may be entitled under the Exclusive Remedies provision and Infringement provisions of this License. User may not withhold or set off any amounts due under this License. Failure to pay any fee when due shall constitute a material breach of this License. If the User doesn't make a payment when due, he is given a period of 15 days to do so. During that time both the Account Owner and other account users will be able to use the Services. If the Account Owner fails to make any payments for the Services, within those 15 days upon written notice to the Account Owner, then thinkSuite shall cease allowing access to the Services for all account users. Article V: Establishment and Maintenance of Accounts
User understands that User must register and establish an account with thinkSuite in order for User to license and use the Services. User represents and warrants to thinkSuite that it will provide, and maintain and update promptly when necessary, true, accurate, complete, and up-to-date information (“Account Data”) when prompted during the registration process. If thinkSuite believes in its reasonable business discretion that Account Data provided by User is inaccurate, incomplete, and/or not up-to-date, thinkSuite has the right, in its sole and absolute discretion, to:
(i) suspend or terminate User’s account,
(ii) suspend or terminate this License, and/or
(iii) reject any current or future access to and use of the Services and the Licensed Application unless and until the affected Account Data is corrected and/or made complete.
User understands that it is solely responsible for maintaining the confidentiality and security of account passwords, account numbers, login information, and any other security or access information used by User to access the Services (collectively, “Login Information”), as well as preventing unauthorized access to or use of the information, files, and/or data that User houses or uses in or with the Services.
User understands and acknowledges that thinkSuite assumes that any communication it receives through use of Account Data was received and/or authorized by User.
Use of the Licensed Application and access to the Services will require Internet access, and therefore User must accept additional terms of service from an Internet service provider. No portion of the Services may be reproduced in any form or by any means. User agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and User shall not exploit the Services in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. User further agrees not to use the Services in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that thinkSuite shall not in any way be responsible for any such use by User, nor for any harassing, threatening, defamatory, offensive, or illegal messages or transmissions that User may receive as a result of using any of the Services. thinkSuite and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will thinkSuite be liable for the removal of or disabling of access to any such Services. thinkSuite may also impose limits on the use of or access to certain Services, in any case, and without notice or liability.Article VII: Mutual Nondisclosure
The parties agree that all information, including, without limitation, the Services and the written documentation for the Services provided by thinkSuite to User (“Documentation”), and all information concerning either party’s business, including, without limitation, information pertaining to either party’s marketing plans, finances, research and development, information technology, competition, customers, and personnel data exchanged by the parties under this License and reasonably to be considered confidential by the disclosing party under the circumstances (collectively, “Confidential Information”) shall be maintained in confidence by the receiving party, and the receiving party shall use the Confidential Information of the other party only as authorized by this License and for no other purpose (it being understood, however, that either party may disclose the Confidential Information to its employees and contractors who have a need to know, provided that same are subject to substantially similar obligations of confidentiality as those herein). In the event the Confidential Information is disclosed visually or orally, the information shall be identified as confidential at the time of such disclosure.
Each party further agrees to take the same measures it uses to protect its own Confidential Information, to prevent the unauthorized disclosure and use of the Confidential Information of the other party to third parties (except as permitted herein), and to prevent such unauthorized disclosure by its employees, agents, and independent contractors who are otherwise permitted access to the information.
The obligations of the receiving party with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be when such information:
(i) was in the public domain at the time of the disclosing party’s communication thereof to the receiving party; (ii) entered the public domain through no fault of the receiving party subsequent to the time of the disclosing party’s communication thereof to the receiving party; (iii) was in the receiving party’s possession free of any obligation of confidence at the time of the disclosing party’s communication thereof to the receiving party; (iv) was independently developed by the receiving party as demonstrated by written records; or (v) is required to be disclosed by court or government order and the disclosing party has been given notice of such order.
The parties agree that a breach of the confidentiality obligations by the receiving party shall cause immediate and irreparable monetary damage to the disclosing party and shall entitle the disclosing party to injunctive relief in addition to all other remedies.
If User is prevented from using the Services or Licensed Application due to an actual or claimed infringement of any U.S. patent, copyright, or other intellectual property rights (that is not as a result of
(i) any misuse, improper use, alteration, or damage of the Services or Licensed Application by User;
(ii) any version of the Services or Licensed Application not made or authorized in writing by thinkSuite;
(iii) the combination of the Services or Licensed Application with other programming or equipment to the extent such combination has not been approved in writing by thinkSuite; orbr (iv) any version of the Services or Licensed Application other than the then current version), thinkSuite may remedy the infringement by:
(x) procuring for User, at thinkSuite’s expense, the right to continue to use the Services;
(y) replacing or modifying the Services at thinkSuite’s expense so that the Services become non-infringing, but substantially equivalent in functionality; orbr (z) in the event that neither (x) or (y) is reasonably feasible, terminating this License as to the infringing Services and returning any License Fees paid by User for the infringing Services.
This Article VIII states thinkSuite’s entire obligation to User with respect to any claim of infringement.
USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES AND THE LICENSED APPLICATION IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES USER RECEIVES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND thinkSuite HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. thinkSuite DOES NOT WARRANT AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE LICENSED APPLICATION OR SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, OR THROUGH USE OF, THE LICENSED APPLICATION WILL MEET USER’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY thinkSuite OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO USER.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL thinkSuite BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF NON PERSONAL DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO USER’S USE OR INABILITY TO USE THE LICENSED APPLICATION OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF thinkSuite HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL thinkSuite’S TOTAL LIABILITY TO USER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF FIFTY U.S. DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. USER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF thinkSuite’S LIABILITY ARE: (A) REASONABLE IN LIGHT OF USER’S ABILITY TO USE THE SERVICES AT THE FEES CHARGED BY thinkSuite, AND (B) ESSENTIAL AND FUNDAMENTAL PARTS OF THIS LICENSE, WHICH ARE NECESSARY TO INDUCE thinkSuite TO ENTER INTO THIS LICENSE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO USER.
User agrees to indemnify, defend, and hold thinkSuite, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney’s fees, brought by any third party arising from or out of, or relating in any way to: (a) User’s use of the Services or any part thereof, or (b) User’s breach of this Agreement.
Communications between User and thinkSuite will be conducted using electronic means, through our website, via e-mail, or other means now or hereafter used. For contractual purposes, User: (a) agrees to receive communications from thinkSuite in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that thinkSuite provides to User electronically satisfy any legal requirement that such communications would satisfy if in a hardcopy written form. The foregoing does not affect User’s non-waivable rights if any.
The Licensed Application is copyright of thinkSuite. All rights reserved. The trademarks, logos, and service marks (collectively, “Marks”) displayed are the property of thinkSuite or may be the property of third parties. Certain uses of Marks require the permission of the owner. If User is interested in using thinkSuite Marks for any purpose, please contact support@thinkSuite.com for permissions and terms and conditions of use.
This License, and all matters arising out of or related to this License, except actions arising under the patent and copyright provisions of the U.S. Code, shall be governed by the laws of the State of New York. The parties agree that this License is not subject to and shall not be interpreted by the United Nations Convention on Contracts for the International Sale of Goods. No action arising out of this License, regardless of form, may be brought more than two (2) years after the claiming party knew or should have known of the cause of action. For Users located in the European Economic Area, this License is also subject to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), more fully described in Article II above.
The parties will use reasonable efforts to resolve amicably any disputes that may relate to or arise under this License. Any disputes that cannot be resolved will be settled exclusively by arbitration, conducted in English, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in New York, New York (the “Arbitration”); however, either party may seek injunctive relief from any court of competent jurisdiction. The following specific provisions will also apply to the Arbitration:
This License is not assignable or otherwise transferable (including by operation of law, merger, or other business combination) by User without the prior written consent of thinkSuite; provided, however, no consent of thinkSuite shall be required for a transfer or assignment by User to any affiliate of User or to any person or entity that acquires all or substantially all of the equity or assets of User (including by operation of law, merger, or other business combination), provided that, in order for such assignment to be effective, User shall provide thinkSuite with written notice of such assignment or transfer as soon as practicable following the closing of such assignment or transfer.
The parties are independent contractors. Nothing contained in this License will be construed or implied to create an agency, partnership, or joint venture between the parties. At no time will either party make commitments or incur any charges or expenses for or on behalf of the other party.
This License is intended to be for the sole and exclusive benefit of the parties hereto, thinkSuite’s suppliers, and their respective successors and permitted assigns. Nothing contained in this License is intended or shall be construed to give any other person any legal or equitable right, remedy, or claim under or in respect to this License or any provision herein contained.
If any provision or portion thereof of this License is held to be invalid or unenforceable, the remaining provisions will remain in full force.
By using the Services or the Licensed Application, User, if an individual, represents and warrants to thinkSuite that he or she is over the age of 16 or has parental or guardian consent, and that User’s use of the Services or the Licensed Application will not violate applicable law as a result of User’s age or competence. If thinkSuite reasonably believes that a User has not accurately represented his or her age, thinkSuite may suspend such User’s use of the Licensed Application and the Services until such User has provided thinkSuite with acceptable proof of age. Any parent or guardian of a User that believes thinkSuite may have inadvertently collected personal information from his or her child under the age of 16 should notify thinkSuite immediately at the email address set forth herein detailing the basis of such belief and request. If you are a teacher and want your students who are under the age of 16 to use the Services or Licensed Application, you agree that you are responsible for complying with the U.S. Children’s Online Privacy Protection Act and the Family Educational Rights and Privacy Act. In compliance with these acts, you agree to notify the students’ parents or guardians of the personal data thinkSuite will collect and you agree to obtain parental or guardian consent before your students use any of the Services or Licensed Application. If you are located outside of the United States, you agree to obtain any required consents or approvals covered by similar laws of other jurisdictions.