To subscribe for the Plus Services, receive an account and access such account, you must execute our order form (“Order Form”) for the Plus Services and pay any Fees required to be paid upon signing the Order Form. To the extent of a conflict between the Order Form and any other provisions of this Agreement, the Order Form will prevail only to the extent it expressly refers to those provisions over which it prevails.
2.1. Subject to this Agreement, we will: (a) make the Plus Services available to you in accordance with the applicable Order Form and our documentation, and (b) host, serve and support the Plus Services in accordance with our Service Level Agreement (“SLA”).
2.2. The Plus Services are further described at https://www.thinkific.com/plus/, provided that we reserve the right to modify or change the Plus Services at any time, provided that the modification or change will not (a) result in a material degradation or material loss of functionality of the Plus Services; or (b) change the service levels provided in the SLA except as permitted by Section 21.
2.3. We may offer other services in connection with the Plus Services, including demonstration, beta or other services and, if you access or use those services, they will form part of this Agreement subject to and in accordance with the corresponding terms and conditions on which Thinkific offers them to you.
3.1. Subject to this Agreement and the applicable Order Form, you may, and you may authorise your customers (“Customers”) and content providers (“Content Providers”) to, access and use the Plus Services solely for the purpose of (a) providing online courses (“Courses”) to individual end users (“Students”) authorized by you or Customers through the site(s) provided to you through the Plus Services (each, a “Site”), and (b) administering and managing the Students’ access and use of the Courses, in each case in the manner in which we make the Plus Services available to you, Customers, Content Providers and Students (collectively, “Authorized Users”). You will ensure that each Customer, Content Provider and Student complies with this Agreement, including their compliance with the restrictions in Section 4. as if they were you. Other than Authorized Users, you will not provide or facilitate access to the Plus Services by any other person.
3.2. You are responsible for (a) Authorized Users’ use of the Plus Services and all transactions with users of the Sites, whether with or without your or our knowledge or consent; (b) the security of Authorized Users’ accounts and all credentials required to access the Plus Services, including the Sites; (c) all content, including all information, data, files, graphics, videos, photos, links and other materials, that is uploaded, stored, or otherwise transmitted by or for Authorized Users through the Plus Services or generated by Thinkific for the Sites (“Site Content”); (d) maintaining backups of the Site Content, including your customer sales, orders and payment information and data and reports; and (e) the completeness and accuracy of the account information Authorized Users provide to us.
3.3. You are responsible for providing terms of service and privacy policies (the “Site Terms”) applicable to Authorized Users’ use of the Sites and will post in a prominent manner on the Sites the Site Terms.
3.4. You will promptly notify us of any unauthorized access to or use of any Authorized Users’ accounts or credentials of Authorized Users required to access the Plus Services.
3.5. You may remove from our service any Site, Site Content (including the Site Terms), or Authorized User at any time. Following the deletion of all of your Sites and Site Content, your account will remain operational for the remainder of the Term (as defined in Section 16.1) and following the Term until it is deleted by Thinkific in accordance with Section 18, unless you submit a written request to us in writing that we delete your account sooner.
4.1. You will not, and will not permit or encourage other Authorized Users or any third party to:
(a) use the Plus Services for or in connection with any illegal or unauthorized purpose or in a manner that (i) infringes, violates or misappropriate any rights of any person, including intellectual property rights, (ii) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, tortious or otherwise objectionable as determined by Thinkific in its sole discretion, (iii) attempts, in any manner, to obtain the password, account, or other security information from any other user, (iv) violates the security of any computer network, or cracks any passwords or security encryption codes, or (v) breach any laws, rules, or regulations applicable to the Plus Services;
(b) reverse engineer, decompile, disassemble, decrypt or otherwise attempt to discover the code or underlying structure, ideas, know-how or algorithms relevant to the Plus Services or access the Plus Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Plus Services;
(c) modify, translate, or create derivative works based on the Plus Services or any software, hardware, documentation or data related to the Plus Services, in whole or part, or reproduce, duplicate, copy, sell, resell or exploit any portion of the Plus Services in whole or in part except to the extent expressly permitted in writing by Thinkific (including in this Agreement or the applicable Order Form) or authorized within the Plus Services;
(d) transmit or use the Plus Services to send or store malicious code, including any worms or viruses or any other code of a destructive nature;
(e) circumvent or attempt to circumvent the Thinkific’s systems for determining applicable charges for use of the Plus Services, including in respect of the number of Students, Active Students (as defined in Section 14.7), Customers, Content Providers or transactions on the Sites; or
(f) purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Thinkific or Thinkific trademarks and/or variations and misspellings thereof.
4.2. If any Authorized User violates this Agreement, including the restrictions above, you will promptly notify us of the violation and suspend or terminate the Authorized User’s access until we advise you otherwise.
4.3 We reserve the right to remove or delete any Site Content or suspend or terminate any Authorized User that violates this Agreement, including the restrictions above.
5. Personal Data
5.2. In connection with providing the Plus Services, we may process data related to individuals that (a) are Authorized Users or (b) is otherwise included in Site Content (“Authorized User Data”). We process Authorized Data on behalf of you as your service provider and, as between you and us, you remain the owner and controller of the Authorized User Data.
5.3. You acknowledge and agree that (a) you are responsible for Authorized User Data as its owner and controller; and (b) you (and not Thinkific) are responsible for ensuring that your use and the use of Authorized Users of the Plus Services complies with (i) all applicable laws, including privacy and data protection laws, and (ii) the corresponding Site Terms
5.4. To the extent Authorized User Data is subject to Data Protection Regulations as defined in our Data Processing Addendum (“DPA”), which is available at https://www.thinkific.com/dpa/, we will process Authorized User Data in accordance with the DPA, which will form part of this Agreement and which may be amended in accordance with its terms.
6.1. We will implement and maintain reasonable physical, organizational and technological security measures that are appropriate having regard to the sensitivity of the Authorized User Data to protect Authorized User Data against loss, theft and unauthorized access, disclosure, use, modification or disposal.
6.2. We will inform you without undue delay after becoming aware of any unauthorized access, disclosure, use or modification of Authorized User Data or Site Content (“Data Incident”), provide you with information about the nature and scope of the Data Incident, and take appropriate steps to contain and remediate the Data Incident.
7.1. We will comply with all applicable laws in providing the Plus Services and performing our obligations under this Agreement and you will comply with all applicable laws in receiving the Plus Services and performing your obligations under this Agreement.
7.2. You represent and warrant to Thinkific that (a) all Site Content complies with all applicable laws in all relevant jurisdictions and does not infringe, violate or misappropriate any rights of any person; (b) the Site Terms (as amended by you) comply with (i) applicable laws in all relevant jurisdictions, including privacy and data protection laws, and (ii) this Agreement; and (c) you have, provided all required notices to and obtained all necessary consents from, Authorized Users to allow Thinkific to process the Authorized User Data as contemplated by this Agreement.
LIMITED WARRANTY AND DISCLAIMER
8.1. Thinkific warrants to you that the Plus Services will perform substantially in accordance its documentation.
8.2. DISCLAIMER OF WARRANTIES. Except as expressly provided in this Agreement, your use of the Plus Services is at your sole risk, and Thinkific offers its Plus Services on an “as-is” and “as available” basis and Thinkific disclaims all other representations, conditions and warranties of any kind, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, or non infringement, and those arising by statute or otherwise in law or from a course of dealing or usage of trade. Without limiting the generality of the preceding sentence, Thinkific does not make does not warrant that (a) the Plus Services will be uninterrupted, timely, secure, error-free; or free of harmful components, (b) the results that may be obtained from the use of the Plus Services will be accurate or reliable, and (c) the quality of any products, services, information, or other material purchased or obtained by you through the Plus Services will meet your expectations, or that any errors in the Plus Services will be corrected, and (d) that any Site Content will be secure or not otherwise lost or damaged. For greater certainty, no advice or information, whether oral or written, obtained from us or elsewhere will create any warranty or condition not expressly stated in this Agreement.
9. DAMAGES EXCLUSIONS; LIABILITY LIMITATIONS
9.1. EXCLUSION OF DAMAGES. Except for your liability and obligations under Section 10, in no event will either party be liable to the other party for any indirect, incidental, special, consequential, punitive, aggravated, exemplary or other damages, whether in contract, tort, negligence, strict liability, statute, or otherwise, including damages for loss of business, profits, revenues, opportunities, anticipated savings, goodwill, use, data or other intangible or economic losses of any kind, arising out of or in connection with the Plus Services, the Sites or this Agreement, even if such person has been advised of the possibility of such damages in advance.
9.2. LIMITATION OF LIABILITY. Except for its liability and obligations under Section 11 in no event will Thinkific’s (or it’s affiliates’, licensors’ or suppliers’) aggregate liability, whether in contract, tort, negligence, strict liability, statute, or otherwise, arising out of or related to (a) this Agreement (other than for a Data Incident as defined in Section 6.2), exceed the Fees actually paid or payable by you under this Agreement during the immediately preceding 12 month period; or for (b) a Data Incident exceed an amount equal to 3 times the Fees actually paid or payable by you under this Agreement during the immediately preceding 12 month period.
You will defend, indemnify, and hold harmless Thinkific and its affiliates, licensors and suppliers, from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of (a) any Authorized Users’ use of the Plus Services; (b) any Authorized Users’ breach of this Agreement, including your and their compliance with the restrictions in Section 4; (c) any Taxes assessed against Thinkific that are your responsibility; (d) any Site Content; (e) any deficiency or breach of the Site Terms; and (f) any disputes between Authorized Users.
11. Infringement Claims
11.1. Subject to this Section 11, we will defend, at our expense, any legal action against you based upon a claim that the Plus Services infringe a Canadian or United States patent and will pay the amount of any adverse final judgement or settlement.
11.2. Thinkific will have no obligations or liability under Section 11.1 (a) for claims in connection with or arising out of (i) use of the Plus Services in violation of this Agreement or applicable laws, (ii) modification or combination of the Plus Services not authorized or provided by Thinkific or use of Plus Services in manner not intended by Thinkific, or; (iii) the Site Content, your intellectual property rights or third party services; (b) if you fail to promptly notify Thinkific of the allegation or determination of infringement and the failure prejudices Thinkific’s ability to defend or the defenses available to it; or (c) if Thinkific is not given the right to solely control and conduct the defense and any settlement of the legal claim.
11.3. If all or any part of any Plus Services is likely, in our opinion, to become the subject of a claim of infringement described in Section 11.1, Thinkific may (a) at its own expense (i) procure for you the right to use the affected Plus Services, or (ii) modify or replace the affected Plus Services or remove content so that it is non-infringing, or (b) terminate the affected Plus Services if Thinkific refunds to you the amounts pre-paid by you for the affected Plus Services.
12. Intellectual Property Rights
12.1. You will own and retain all right, title and interest in the Site Content. Notwithstanding the foregoing, Thinkific will have the right to (a) access, use, copy, support, maintain, store, modify, sublicense, distribute and display the Site Content as necessary to deliver the Plus Services; and (b) use the Site Content to improve and enhance the Plus Services and for other development, diagnostic and corrective purposes in connection with the Plus Services. You hereby grant Thinkific a non-exclusive right to use your trade-names, trademarks, service marks, trade dress and logos to promote the Thinkific service, provided that you have approved in advance.
12.2. Thinkific will own and retain all right, title and interest in (a) the Plus Services and all improvements, enhancements or modifications thereto, (b) any data (including metadata) arising or derived from or based on the provision, use and performance of various aspects of the Plus Services (other than Site Content as provided), and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted by Thinkific except as expressly set out in this Agreement.
12.3. Thinkific responds to allegations of copyright in accordance with our Digital Millennium Copyright Act Policy, which is available at https://www.thinkific.com/terms-of-service/ and which may be amended in accordance with its terms.
13.1. Each party (the “Receiving Party”) acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”), excluding any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Confidential Information of Thinkific includes, without limitation, non-public information regarding pricing, personnel, or partnerships, features, functionality, security and performance of the Plus Services. For certainty, your Confidential Information does not include any data or information Authorized Users provide to the Plus Services or that is automatically collected or created by the Plus Services.
13.2. The Receiving Party will (a) take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Plus Services or as otherwise permitted herein) or divulge to any third-party any such Confidential Information.
13.3. If the Receiving Party is required by law, regulation, court order or any governmental or regulatory body or authority to disclose all or any part of the Confidential Information of the Disclosing Party, the Receiving Party will (a) immediately notify the Disclosing Party of the requirement, and (b) use commercially reasonable efforts to provide the Disclosing Party with an opportunity to take the steps as it desires to challenge or contest the disclosure or seek a protective order or other remedy. Thereafter, the Receiving Party may disclose the Confidential Information, but only to the extent so required and subject to any protective order or other remedy that applies to the disclosure.
14.1. You will pay all fees (the “Fees”) as and when specified in the applicable Order Form.
14.2. If the Order Form specifies that Fees are based on usage tiers, then except where the Order Form states otherwise, this Section 14.2 will apply to determine the usage tier that applies to a particular billing period. Thinkific will determine which usage tier will apply to each billing period (the “Billing Period Tier”) based on your usage of the Plus Services in the preceding billing period. If the Order form provides that usage tiers are based on more than one type of usage limit (for example, number of Active Students and number of Sites), the highest pricing tier applicable to your usage will apply.
14.3. Unless otherwise specified on the Order Form, all Fees are payable monthly in advance of the billing period to which they apply, which amounts may also be pre-paid in advance for longer periods (e.g. lump sum for annual period).
14.4. Unless the method of payment has been altered upon the mutual agreement of the parties, we shall be entitled to charge all amounts you owe Thinkific to the credit card authorized by you.
14.5. If any amounts owed to Thinkific are not received by Thinkific by the due date, then, at our discretion and in addition to any other rights Thinkific has under this Agreement (a) such amounts may accrue late interest at the lower of: (i) the rate of 12% per year, or (ii) the maximum rate permitted by law from the date such payment was due until the date paid, and (b) Thinkific may, in our sole discretion, immediately suspend your and Authorized Users’ access to the Plus Services and Sites until all overdue amounts, plus a pre-payment of all Fees which would otherwise be due on the next billing date, are received by Thinkific.
14.6. Thinkific will not refund Fees except where expressly provided in this Agreement.
14.7. For the purposes of this Agreement, the term “Active Student” means a Student who has a full, unexpired enrollment in a Course, provided that (a) a Student enrolled in a free Course or in a free trial on a subscription pricing option counts as an Active Student (except that a Student enrolled only in a free preview does not count as an Active Student until the student converts to a paid student), and (b) a Student who is enrolled in one or more Courses under your account will count as one Active Student irrespective of the number of Courses he or she is enrolled in.
15.1. All fees payable to Thinkific under this Agreement are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized, value-added or other taxes, fees or charges (“Taxes”).
15.2. You (and not Thinkific) are responsible for (a) all Taxes applicable to the Plus Services (other than Taxes based on Thinkific’s net income) and for paying those Taxes in a timely manner when due and payable; (b) determining the Taxes that apply to transactions occurring between you, Customers, Content Providers and Students or otherwise through the Sites; and (c) collecting, reporting and remitting the corresponding Taxes to the appropriate Tax authorities in a timely manner when due and payable. Thinkific may from time to time make available to you certain tax calculation services offered by third-party providers without liability, which are Third-Party Tools subject to Section 20.
16.1. This Agreement will commence on the first day of the initial term set out on your first Order Form, and will continue in effect until the earlier of: (a) the expiration of all Order Forms applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in Section 16.2), and (b) the termination of this Agreement in accordance with its terms (the “Term”).
16.2. The term of each Order Form will start on the first day of the initial term specified on the Order Form, and will continue for the specified term. Except as expressly stated otherwise in an Order Form, all Order Forms will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal at least 60 days prior to the end of the then-current term. Thinkific reserves the right to increase the Fees for Plus Services and/or on renewal by providing you written notice thereof (which notice may be provided by email) at least 90 days prior to the end of the then-current term.
17.1. Either party may terminate this Agreement by notice to the other party if (a) if the other party breaches an obligation under Section 3, 4, 12, or 13 or any other material obligation set out in this Agreement and, if the breach is capable of being cured, fails to cure the breach within 30 days of receipt of notice of the breach, or (b) if the other party ceases to do business as a going concern, admits in writing its inability to pay debts as they become due, files or becomes the subject of a petition in bankruptcy, appoints a receiver, acquiesces in the appointment of a receiver or trustee, becomes insolvent, makes an assignment for the benefit of creditor, goes into liquidation or receivership or otherwise loses legal control of its business.
17.2. In addition to Thinkific’s rights to terminate this Agreement set out elsewhere in this Agreement (including for non-payment), Thinkific may terminate any Order Form after the initial term specified in that Order Form by giving you 180 days prior notice.
18. Effect of Termination
Upon termination of this Agreement for any reason: (a) all Order Forms will automatically terminate, (b) your access to Thinkific accounts and the Plus Services will terminate and you will immediately cease all use thereof, and (c) you will pay all unpaid amounts you owe to Thinkific. If you terminate this Agreement in accordance with Section 17.1, Thinkific will refund any Fees you paid in advance for the Plus Services applicable to the period after termination. If Thinkific terminates this Agreement in accordance with Section 17.1 or as provided elsewhere in this Agreement (including for non-payment), then you will pay any unpaid Fees for the remainder of the term of each Order Form. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to Thinkific for the period prior to the date of termination. On termination of this Agreement, Thinkific is entitled to delete all of your Site Content and account after 90 days during which you will be able to download your Site Content in the manner provided through the Plus Services.
Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 7, 8, 9, 10, 11, 12, 13, 14, 15, 18,20, 22, 24, 25 and this 19 will survive the expiration or termination of this Agreement.
20. Third Party Tools and Experts
We may provide (a) you with access to, or integration with, tools or services provided by third parties (“Third-Party Tools”) that are optional for your Sites, or (b) an online directory of independent third parties (“Third-Party Experts”) that can help you build and operate your Sites. You acknowledge and agree that (a) your use of the Third-Party Tools and engagement of Third-Party Experts is at your own risk and discretion and Thinkific will have no liability whatsoever arising from or relating to such use or engagement. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates Authorized Users should charge Students.
Except as otherwise expressly permitted or specified herein, this Agreement will not be amended except by a written agreement that: (a) is signed by each party; and (b) expressly states that it is intended to amend this Agreement. No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived.
22.1. Any notice contemplated by this Agreement, to be effective, must be in writing and delivered as follows: (a) by email to the addressee’s email specified on the Order Form, in which case it will be deemed to be received on the day sent; (b) by nationally recognized overnight courier to the addressee’s address specified on the Order Form, in which case it will be deemed to be received on the next business day after its couriering; or (c) by prepaid post to the addressee’s address specified on the Order Form, in which case it will be deemed to be received on the fifth business day after its mailing.
22.2. Either party may from time to time give notice to the other party of a substitute address or email address, which from the date such notice is given will supersede for purposes of this Section 22 any previous address or email address specified for the party giving the notice.
23. Force Majeure
Thinkific will not be liable for its failure to perform or the delayed performance of its obligations if such failure results from circumstances beyond its reasonable control, including, acts of God, fires, floods, wars, sabotage, civil unrest, pandemics, accidents, labour disputes, labour shortages, government laws, rules and regulations, whether valid or invalid, inability to obtain material, equipment, incorrect, delayed or deficient specifications, data or services supplied by a third-party.
The failure of Thinkific to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. This Agreement constitutes the entire agreement between you and Thinkific and govern your use of the Plus Services, superseding any prior agreements between you and Thinkific (including any prior versions of this Agreement). If any provision of these terms is held void, invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provisions contained in these terms or the validity, legality or enforceability of that provision or part thereof in any other jurisdiction, and the remaining portions of these terms will continue in full force and effect. This Agreement, the rights granted hereunder, and any orders made hereunder will not be assigned by you without the prior written consent of Thinkific. Thinkific may assign this Agreement at any time, provided that notice of the assignment is provided to you. In this Agreement the term “including” means “including without limitation”.
25. Applicable Law
This Agreement is governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to principles of conflict of laws of any jurisdiction and notwithstanding your domicile, residency or physical location. The International Sale of Goods Act of British Columbia and the United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to these terms or to the transactions contemplated by these terms. You irrevocably attorn to the non-exclusive jurisdiction of the courts of British Columbia.