Thinkific Plus Terms of Service
Last modified September 1, 2023
The following terms and conditions govern your account and use of the Plus Services with Thinkific. Your contract and account is with Thinkific Labs Inc. (if you register from within Canada and the rest of the world), or with its subsidiary, Thinkific.com Inc. (if you register from within the United States). The applicable Thinkific entity is referred to herein as “Thinkific”, “we” or “our”. By subscribing for the Plus Services offered by Thinkific, you or the entity you represent (“you”, or “your”) agree to the following terms and conditions, including our Privacy Policy, Cookie Policy, Support and Service Level Agreement, and if, applicable, Data Processing Addendum, incorporated herein by reference, and all other terms and conditions that are incorporated by reference into these terms and conditions (this “Agreement”). If you do not agree to all of the terms of this Agreement, you must not subscribe for or use the Plus Services. If the individual agreeing to this Agreement is doing so on behalf of a company or other legal entity, that individual represents that they have the authority to bind such company or other legal entity to the terms of this Agreement.
This Agreement applies only to Plus Services. Separate terms and conditions apply to the Self-Serve Services, which are available at https://www.thinkific.com/terms-of-service.
1. Subscription
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. Services
2.1. Subject to this Agreement, we will: (a) make the Plus Services available to you and your Authorized Users in accordance with the applicable Order Form and our documentation; and (b) host, serve and support the Plus Services in accordance with our Support and Service Level Agreement (“SLA”) as modified from time to time and further described at https://www.thinkific.com/sla/ and incorporated herein by this reference.
2.2. The Plus Services are further described at https://www.thinkific.com/plus/. Thinkific reserves the right to modify the Terms of Service at any time by posting updates and changes to the Thinkific website. With the exception of third party services, modifications by Thinkific will not: (a) result in a material degradation or material loss of functionality of the Plus Services; or (b) materially change the service levels provided in the SLA.
2.3. Subject to this Agreement, we will use commercially reasonable efforts to provide you with implementation, custom support or other professional services (if any) relating to the Plus Services, on such terms as may be specified in the applicable Order Form or separate statement of work agreed to by the parties.
2.4. Subject to this Agreement, we may provide you with access to mobile apps and related services that can be rebranded with your name, logo and other custom branding of your choosing (“White Label Apps”) on such terms as may be specified in the applicable Order Form. Such White Label Apps are optional for use as part of your Sites.
2.5. 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 in which Thinkific offers them to you.
3. Authorized Users
3.1. Subject to this Agreement and the applicable Order Form, you may, and you may authorise your customers (your “Customers”) and content providers (your “Content Providers”) to, access and use the Plus Services solely for the purpose of: (a) benefitting the advancement of your business; (b) providing online courses (your “Courses”) to individual end users (your “Students”) authorized by you or your Customers through the site(s) provided to you through the Plus Services (each, a “Site”); and (c) administering and managing your Students’ access and use of your Courses, in each case in the manner in which we make the Plus Services available to you, your affiliates, and your respective officers, directors, employees, Customers, Content Providers and Students (collectively, your “Authorized Users”). You will make commercially reasonable efforts to ensure that each of your Authorized Users complies with this Agreement, including their compliance with the restrictions in Section 4 as if they were you. Other than your Authorized Users, you will not provide or facilitate access to the Plus Services by any other person.
3.2. You are responsible for: (a) your 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 your Authorized Users’ accounts and all credentials required to access the Plus Services, including the Sites (except to the extent that a breach of security is caused by a breach of Thinkific's obligations under Section 6.1); (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 your Authorized Users through the Plus Services or generated by Thinkific for the Sites (the “Site Content”); (d) maintaining backups of the Site Content, including your customer sales, orders and payment information and data and reports; (e) adhering to all applicable laws and regulations, including, without limitation, data protection and privacy laws, and (f) the completeness and accuracy of the account information your Authorized Users provide to us.
3.3. You are responsible for providing terms of service and privacy policies (the “Site Terms”) applicable to your Authorized Users’ use of the Sites and you will post such Site Terms in a prominent manner on the Sites.
3.4. You will promptly notify us upon becoming aware of any unauthorized access to or use of any of your Authorized Users’ accounts or credentials required to access the Plus Services.
3.5. You may remove from the Plus Services any Site, Site Content (including the Site Terms), or any of your Authorized Users 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 18.2) and following the Term until it is deleted by Thinkific in accordance with Section 20, unless you submit a written request to us in writing that we delete your account sooner.
4. Restrictions
4.1. You will not, directly or indirectly, and you will not permit or encourage your Authorized Users or any third parties 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, confidentiality or privacy rights; (ii) is harmful, fraudulent, deceptive, misleading, threatening, harassing, defamatory, offensive, biased, obscene, vulgar, indecent, menacing, 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 crack any passwords or security encryption codes; or (v) breaches any laws, rules, or regulations applicable to your use of 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, or write or develop any program based on the Plus Services or any portion thereof, in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Plus Services;
(c) circumvent or attempt to circumvent any limitations imposed on your account including any license, timing or use restrictions that are built into the Plus Services;
(d) lend, sell, resell, lease, sublicense, transfer, assign, distribute, grant a security interest in, or otherwise use the Plus Services for the benefit of a third party, unless we have given you prior written authorization;
(e) 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, 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;
(f) upload, transmit, disseminate or use the Plus Services to send or store malicious code, including any worms, viruses, Trojan horses, or any other software or code of a destructive nature;
(g) use the Plus Services to collect or store any sensitive information (“Sensitive Information”) including, but not limited to personal health information, banking and credit card information, and if you do use the Plus Service to collect, store or otherwise process any Sensitive Information you do so at your own risk and you are responsible for ensuring compliance with all applicable laws;
(h) use the Plus Services other than in accordance with our product documentation;
(i) permit the Plus Services to be used by anyone other than Authorized Users;
(j) use the Plus Services to advertise, promote or market competitor platforms to Thinkific’s or for any third party’s interests or benefit, other than for the proper use of the Plus Services, without our consent;
(k) circumvent or otherwise interfere with any authentication or security measures of the Plus Services, or otherwise interfere with or disrupt the integrity or performance of the Plus Services, including doing anything to, or using the Plus Services in a way that may, cause the Plus Services to be interrupted, damaged, rendered less efficient or such that the effectiveness or functionality of the Plus Services is in any way impaired, including overloading, flooding, spamming, mailbombing or crashing;
(l) use any robot, spider, device, technology or process to monitor or copy any data or pages within the Plus Services without our prior written consent;
(m) 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 your Students, Active Students (as defined in Section 16.7), Customers, Content Providers or transactions on the Sites; or
(n) 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,or alter or remove any trademarks or proprietary notices contained in or on the Plus Services without our consent.
4.2. You agree to use the bandwidth and storage resources provided by Thinkific in a reasonable and proportionate manner based on your subscription plan tier. We monitor usage to ensure fair distribution of resources among all Thinkific customers. In the event that your bandwidth or storage usage exceeds what is reasonable and proportionate to your subscription plan tier, we reserve the right to take appropriate measures, such as implementing bandwidth throttling or imposing storage limits. Prior to taking any action, we will notify you of any excessive usage and work with you to resolve any issues. Failure to adhere to fair usage limits despite prior notifications may result in Thinkific suspending or terminating your access to the services, in whole or in part, without liability.
4.3. Upon becoming aware of any violation of this Agreement by any of your Authorized Users, including the restrictions above, you will promptly notify us of the violation and suspend or terminate that Authorized User’s access until we advise you otherwise.
4.4. We reserve the right, but are under no obligation to suspend, remove or delete any Site Content or suspend or terminate any of your Authorized Users that violate this Agreement, including the restrictions above. In addition, and notwithstanding anything to the contrary in this Agreement (including Section 19, we may suspend or terminate your access to the Plus Services in the event that you violate the restrictions in Section 4.1 above, without prior notice to you.
4.5. We reserve the right to suspend our Plus Services to you in the event that it is necessary to avoid material harm to Thinkific or its other customers, including if the Plus Service is experiencing denial of service attacks, viruses, security issues, mail flooding, or other attacks or disruptions outside of our control, or as required by law or at the request of governmental entities.
5. Personal Data
5.1. The ordinary operation of our Plus Services to you and administering your Thinkific account requires us to collect personal data related to individuals that are you, your employees or your representatives (“Client Data”).
5.2. In connection with providing the Plus Services to you, we may process personal data that is: (a) related to individuals who are Authorized Users, or (b) otherwise included in Site Content (collectively, “Authorized User Data”).
5.3. We will process Client Data and Authorized User Data in accordance with: (a) this Agreement, (b) our Privacy Policy, which is available at https://www.thinkific.com/privacy-policy/, and (c) our Data Processing Addendum, which is available at https://www.thinkific.com/dpa/ (the “DPA”), to the extent that Client Data and Authorized User Data are subject to Data Protection Regulations as defined in the DPA. The Privacy Policy and DPA will form part of this Agreement and may be amended in accordance with their terms. We will not sell Client Data or Authorized User Data.
5.4. You acknowledge and agree that: (a) we will process Authorized User Data on your behalf as your service provider and, as between you and us, you remain the owner and controller of the Authorized User Data; (b) you are responsible for Authorized User Data as its owner and controller; and (c) you (and not Thinkific) are responsible for ensuring that your use, and the use by Authorized Users, of the Plus Services complies with (i) all applicable laws, including privacy and data protection laws, (ii) the corresponding Site Terms, and (iii) this Agreement.
5.5. We do not knowingly provide services or sell products to children. If you or any of your Authorized Users are below the age of 16, you or they may use our website or the Plus Services only with the permission and active involvement of a parent or legal guardian. If you are a minor, do not provide us or other website visitors with any personal information and do not use the Plus Services. If any of your Authorized Users are minors, do not, and ensure that such Authorized Users do not, provide us or other website visitors with any personal information about such Authorized Users, and do not permit such Authorized Users to use the Plus Services unless you have procured the permission and active involvement of a parent or legal guardian. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at info@thinkific.com.
6. Security
6.1. We will implement and maintain commercially reasonable physical, organizational and technological security measures that are appropriate having regard to the sensitivity of the Authorized User Data, which are designed 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 commercially reasonable steps to contain, mitigate and remediate the Data Incident.
7. Compliance
7.1. We will comply with all applicable laws and regulations in providing the Plus Services and performing our obligations under this Agreement and you will comply with all applicable laws and regulations in using 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 and regulations in all relevant jurisdictions and does not infringe, violate or misappropriate any rights of any person; (b) the Site Terms (as may be amended by you from time to time) comply with (i) applicable laws and regulations 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.
8. Thinkific Payments
8.1. Payments Platform. Thinkific offers access to a payments platform through which we will process payment transactions which may include Taxes with your Customers, Students or other Authorized Users (“Thinkific Payments”). We use a third party payments processor and platform provider like Stripe Inc. (“Stripe”) to facilitate Thinkific Payments (the “Provider”). We reserve the right to change the Provider at any time, in which case you agree to take whatever steps as we may advise in order to migrate the Thinkific Payments service to another Provider.
8.2. Fees. Similar to many other payment platforms, we will charge you a fee for every transaction you process through Thinkific Payments, including purchase/payment transactions and credit/refund/return transactions. Fees for Thinkific Payments are payable by you to Thinkific in accordance with the Pricing Schedule posted on our website.
8.3. Settlement of Transactions.
(a) We will deposit the amounts actually received by us for transactions submitted through Thinkific Payments (less any applicable fees and Chargebacks, defined below) into your designated bank account or by any other means that we may make available and you may select (such as push card payments), in accordance with the payout schedule in your Thinkific plan or Order Form. Your payout schedule is subject to change if your Thinkific plan changes. Payouts for new Customers or Students may be delayed while we verify your account.
(b) You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error in accordance with this paragraph will be deemed a waiver of any right to amounts owed to you.
(c) We may delay settlement if we need to conduct an investigation or resolve any suspicious activity or pending dispute related to any transaction or your account, for the entire time it takes for us to do so. We also may defer settlement or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
8.4 Chargebacks.
(a) The amount of a transaction may be reversed or charged back to your bank account (a “Chargeback”) if the transaction (a) is disputed by one of your Customers, Students or other Authorized Users, (b) is reversed for any reason by a payment card network (defined below), our Provider, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. We will charge you a fee of $20 for each Chargeback. For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (defined below). We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the card-issuing bank or organization or our Provider from your bank account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay settlement of future transactions. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that (a) a Chargeback is assessed due to an Authorized User’s complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the Authorized User may dispute that the transaction has expired or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any amounts due to Thinkific under this Agreement that are unpaid by you.
(b) If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve (defined below) in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying settlement and (d) terminating or suspending your access to the Thinkific Payments or other Plus Services.
(c) Any bank account or payment card information may be held by Thinkific to satisfy any account balances, disputes, refunds, Chargebacks or other liabilities or obligations after leaving or terminating Thinkific Payments or any other Plus Services offered under this Agreement.
8.5. Reserve. We may at any time in our discretion designate an amount of funds that you must maintain in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks or refunds, or other indications of performance problems related to your use of Thinkific Payments or other Plus Services. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, unfulfilled services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or our Provider may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your account, including but not limited to any funds (a) due to you under this Agreement or (b) available in your bank account, or other payment instrument registered with us. You also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your bank account.
8.6. Refunds and Returns.
(a) You agree to process returns, and provide refunds and adjustments, for your goods or services through Thinkific Payments in accordance with this Agreement and any applicable payment card network rules or our Provider’s terms. Payment card network rules may require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a card sale, unless required by law and (d) not accept cash or any other item of value for preparing a card sale refund. You are responsible for knowing and adhering to the payment card network rules applicable to you, and Thinkific will not be liable for any violation by you of the payment card network rules.
(b) The amount of the refund/ adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the user for postage that the user paid to return merchandise, if applicable. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the Authorized User, you may still receive a Chargeback relating to such sales. You can process a refund through your account up to sixty (60) days from the day you accepted the payment. If the balance in your account is insufficient to cover the refund, we will withdraw up to the requested refund amount from your bank account and credit it back to your Authorized User’s card. Transaction fees are also refunded, so the full purchase amount is always returned to your Authorized User.
8.7. Customer Service. Even if Thinkific handles disputes, Chargebacks or refunds on your behalf through Thinkific Payments, you are solely responsible for all customer service issues relating to your services, including pricing, fulfillment, cancellation by you or your Customers or Students, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback, reviews, or ratings concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from Thinkific. As between you and Thinkific, you are solely responsible for customer service issues relating to your account.
8.8. Stripe Connected Accounts. Where Stripe is the Provider, the following provisions will apply:
(a) To connect to our platform and process payments through Stripe we will create a Stripe account (a “Stripe Connect Account”) for you that is connected to the Thinkific Payment platform. You will be required to accept the terms of the Stripe Connected Account Agreement and Stripe Services Agreement as well as any other documentation that Stripe may require (the “Stripe Documentation”). You agree to comply with the Stripe Documentation and not to engage in any activity that is expressly prohibited by the Stripe Documentation. Stripe processes your personal information in accordance with its own privacy policy, available here: http://stripe.com/privacy. Stripe may deny the creation of a Stripe Connect Account or may suspend or terminate a Stripe Connect Account, in its discretion in accordance with the Stripe Documentation.
(b) You agree that we can directly access your Stripe Connect Account dashboard, including information about your transactions (including purchases and refunds) and Stripe account balance (your “Connected Account Data”), in order to collect fees, process payments and refunds, handle disputes, process Chargebacks, and any other activity necessary to provide Thinkific Payments or other Services in accordance with this Agreement and our Privacy Policy, and you give us express authorization to conduct any of the above activities on your behalf through your Stripe Connect Account.
(c) We may exchange Connected Account Data with Stripe as necessary to detect and prevent fraud, misuse, unlawful, abusive or deceptive activity, and otherwise to allow Thinkific and Stripe to each comply with our legal and regulatory obligations.
(d) You represent and warrant that all information provided to Thinkific or Stripe in connection with the creation or maintenance of a Stripe Connected Account is true and accurate in all material respects. You will be responsible for any loss or liability incurred by Thinkific due to activity conducted through a Stripe Connect Account initiated by you or on your behalf,or using your credentials even if not authorized by you, and Thinkific may deduct such losses from your Stripe Connect Account or your Thinkific Account, or require you to pay such losses to Thinkific.
(e) You agree to indemnify, defend and hold harmless Thinkific and Stripe and their respective affiliates from any claims brought by a third party arising out of any activity conducted through a Stripe Connect Account or arising out of your breach of this Agreement or the Stripe Documentation.
9. WHITE LABEL APPS
With respect to any White Label Apps which Thinkific may provide you with access to in connection with your Sites, you acknowledge and agree as follows:
(a) Thinkific is not a party to any terms or agreements that may be entered into between you and your chosen app store vendor (“ASV”) such as Apple and/or Google, and you are solely responsible for your own dealings with your chosen ASV, and for compliance with such terms or agreements.
(b) Your decision to make available your White Label App through an ASV is at your own risk and discretion.
(c) Thinkific does not guarantee that your White Label App will be approved by any ASV, and any approval by an ASV will be subject to your compliance with the ASV’s guidelines and policies.
(d) All mobile apps including your White Label App may be subject to ongoing reviews by ASVs, and failure to comply with your ASV’s guidelines and policies or your other terms or agreements with the ASV may result in your White Label App listing being revoked or suspended by the ASV without advance warning and/or control by Thinkific.
(e) Thinkific will not refund fees in the event that you are unable to make available or use, or continue to make available or use, your White Label App through your ASV.
(f) Any content accessible on your White Label App, including content generated by your Authorized Users, will be subject to the terms and conditions set out by your ASV, for which you will be solely responsible.
(g) Thinkific does not guarantee and is not responsible for the availability of, content provided on, or functionality of, the ASV’s platform or any third party sites relating to the ASV’s platform.
(h) Even if Thinkific supports you in resolving disputes with your chosen ASV, you are solely responsible for all content, technical support and customer service issues relating to your White Label App, including, but not limited to, in-app purchases, fulfillment, cancellation by you, your Authorized Users, returns, refunds, adjustments, rebates, functionality, warranty and feedback, reviews, or ratings.
(i) When providing technical support and customer services to your Authorized Users in connection with your White Label App, you must always present yourself as a separate entity from Thinkific and not as an agent or representative of Thinkific. As between you and Thinkific, you are solely responsible for all technical support and customer service issues relating to your White Label App.
10. LIMITED WARRANTY AND DISCLAIMER
10.1. Thinkific warrants to you that the Plus Services will perform substantially in accordance with its documentation. If there is a material breach of the foregoing warranty, and provided that you notify Thinkific of the specific non-conformance during the Term, your sole remedy is for Thinkific to: (a) at its own expense, either (i) modify the Plus Services to conform with the foregoing warranty, or (ii) provide a reasonable workaround solution that will reasonably meet your requirements, or (b) terminate the affected Plus Services and refund to you the amount pre-paid, but unused by you for the affected Plus Services. The foregoing warranty does not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Thinkific, and does not apply if the Plus Services have not been used or operated by you in accordance with this Agreement or the applicable documentation.
10.2. 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. 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 FOREGOING, EXCEPT AS MAY BE SET FORTH IN THE SLA, THINKIFIC 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 OR MEET YOUR NEEDS, (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 BUSINESS REQUIREMENTS, OR THAT ANY ERRORS IN THE PLUS SERVICES WILL BE CORRECTED, (D) ANY SITE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, (E) ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDED IN OR MADE AVAILABLE THROUGH THE PLUS SERVICES WILL BE AVAILABLE OR CONTINUE TO BE AVAILABLE OR WILL MEET YOUR EXPECTATIONS OR BUSINESS REQUIREMENTS, OR (F) YOU WILL BE ABLE TO USE OR MAKE AVAILABLE, OR CONTINUE TO USE OR MAKE AVAILABLE, ANY WHITE LABEL APP THROUGH AN ASV. 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.
10.3. DISCLAIMER OF LIABILITY FOR ARTIFICIAL INTELLIGENCE (AI) SYSTEMS. AI SYSTEMS ARE NOT FLAWLESS AND ARE KNOWN TO GENERATE INACCURATE RESULTS, MAY INFRINGE OR MISAPPROPRIATE INTELLECTUAL PROPERTY RIGHTS, MAY DISCLOSE CONFIDENTIAL INFORMATION, MAY COMMIT PLAGIARISM, OR MAY CREATE OUTPUTS, OR RELY UPON INPUTS, THAT ARE CONTRARY TO LAW OR THAT ARE OTHERWISE UNDESIREABLE. YOU SHOULD NOT INPUT OR USE ANY DATA OR OTHER INFORMATION THAT YOU WISH TO PROTECT, ARE REQUIRED TO PROTECT, OR THAT SHOULD NOT BE DISCLOSED OR MISUSED, WHETHER FOR PRIVACY, CONFIDENTIALITY OR OTHER REASONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THINKIFIC CANNOT AND SHALL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY, FOR ANY FORM OF DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES DESCRIBED IN SECTION 11.1 OR DAMAGES IN RESPECT OF ANY PERSON, PROPERTY OR OTHERWISE, ARISING FROM OR RELATED TO THINKIFIC’S PROVISION OF AI OR RESULTS THEREFROM, YOUR DIRECT OR INDIRECT USE OF AI OR FROM YOUR DIRECT OR INDIRECT USE OF THE PLUS SERVICES THAT INCORPORATE OR RELY UPON AI. THIS DISCLAIMER OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY LIABILITY FOR INACCURATE RESULTS, UNINTENDED OR UNFORESEEABLE CONSEQUENCES, OR ACTIONS OR DECISIONS TAKEN BY YOU OR OTHERS IN RELIANCE UPON SUCH RESULTS.
11. DAMAGES EXCLUSIONS; LIABILITY LIMITATIONS
11.1. EXCLUSION OF DAMAGES. EXCEPT FOR EACH PARTY’S LIABILITY AND OBLIGATIONS UNDER SECTIONS 12, 13, AND 15 OR A PARTY’S LIABILITY FOR ANY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, 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 DAMAGES ARE REASONABLY FORESEEABLE OR THE PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. LIMITATION OF LIABILITY. EXCEPT FOR ITS LIABILITY AND OBLIGATIONS UNDER SECTIONS 12.2 AND 13, IN NO EVENT WILL THINKIFIC’S (OR ITS AFFILIATES’, LICENSORS’ OR SUPPLIERS’) AGGREGATE LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD; EXCEPT THAT THINKIFIC’S AGGREGATE LIABILITY FOR A DATA INCIDENT (AS DEFINED IN SECTION 6.2) CAUSED BY A BREACH OF THINKIFIC’S OBLIGATIONS UNDER SECTION 6.1 OR THE DPA SHALL NOT 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. THE LIMITATIONS SET FORTH IN SECTIONS 11.1 AND 11.2 WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
12. Indemnity
12.1. You will defend, indemnify, and hold harmless Thinkific and its affiliates, licensors and suppliers, from and against all third party 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, except to the extent arising from Thinkific’s gross negligence or willful misconduct or arising from an infringement claim pursuant to which Thinkific is obligated to indemnify you pursuant to Section 13; (b) your or 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 or between you and any ASV.
12.2. Thinkific will defend, indemnify, and hold you harmless from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred as a result of a third party claim in connection with or arising out of Thinkific’s gross negligence or willful misconduct.
13. Infringement Claims
13.1. Subject to this Section 13, we will defend, at our expense, any legal action brought against you by a third party based upon a claim that the Plus Services infringes upon their intellectual property and if applicable, we will pay the amount of any adverse final judgement or settlement.
13.2. Thinkific will have no obligations or liability under Section 13.1 to the extent: (a) such claims are in connection with or arise out of (i) your or your Authorized User’s use of the Plus Services in violation of this Agreement or applicable laws or regulations, (ii) your or your Authorized User’s 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) 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) Thinkific is not given the right to solely control and conduct the defense and any settlement of the legal claim. You will not agree to the settlement of any such claim without the prior written consent of Thinkific, which will not be unreasonably withheld, conditioned or delayed. You will have the right to participate in the defense of such claim with counsel of your own choosing and at your own expense.
13.3. 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 13.1, 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, but unused by you for the affected Plus Services.
14. Intellectual Property Rights
14.1. You will own and retain all right, title and interest in the Site Content, including all intellectual property rights related thereto. 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 on an aggregated, anonymized and de-identified basis the Site Content to improve and enhance the Plus Services and for other development, diagnostic and corrective purposes in connection with the Plus Services.
14.2. 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, in accordance with your trademark usage guidelines (if any) that is provided to us.
14.3. Thinkific will own and retain all right, title and interest in (a) all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions and other tangible and intangible information relating to the Plus Services, any related services provided by Thinkific and associated deliverables, and all improvements, enhancements or modifications thereto, (b) any anonymized usage 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), provided that such data does not identify you or any individual, 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, and all such rights are expressly reserved to Thinkific.
14.4. 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.
14.5. If you choose to provide feedback including any ideas, suggestions, concepts, processes, techniques, questions, answers, codes/scripts, and other comments related to our services, site, proposed services, documentation or business (“Feedback”), Thinkific may own and use Feedback without any restrictions and without obligations to you and you hereby waive any claim you have to ownership, compensation, monetary or otherwise.
14.6. You acknowledge that, in order to ensure compliance with legal obligations, Thinkific may review certain Site Content to determine whether it is illegal or whether it violates this Agreement. We may also prevent access to, refuse to display, or remove content that we reasonably believe violates the law or this Agreement. Notwithstanding the foregoing, Thinkific has no obligation to monitor or review any content submitted to the Plus Services by you or any other person, and you remain solely responsible for your Site Content.
14.7. If you remove any Site Content, delete your account or if this Agreement is terminated, you agree that Thinkific may use and retain a copy, including archives, of your Site Content, your Confidential Information (as defined below) or any information related to your account for business purposes related to the Agreement and to the extent necessary to meet our legal compliance obligations (including, for audit and anti-fraud purposes).
15. Confidentiality
15.1. 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 that is marked as confidential or that a reasonable person would conclude is confidential in light of the circumstances surrounding which the information was disclosed (“Confidential Information”), excluding any information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, without any obligation of confidentiality, 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, or (e) was instructed or permitted by the Disclosing Party to disclose. Confidential Information of Thinkific includes, without limitation, non-public information regarding pricing, personnel, or partnerships, features, functionality, security and performance of the Plus Services.
15.2. The Receiving Party will (a) take reasonable precautions to protect such Confidential Information from unauthorized use and disclosure, and (b) not use (except in performance of the Plus Services or as otherwise permitted herein) or divulge to any third-party any such Confidential Information, except to the Receiving Party’s and its affiliates’ employees, consultants, officers, directors or advisors with a bona fide need to know the Confidential Information and in each case subject to written obligations of confidentiality no less onerous than those set out in this Agreement. The Receiving Party does not acquire any rights, express or implied, in the Disclosing Party’s Confidential Information, except for the limited use specified in this Agreement.
15.3. 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, to the extent legally permissible (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.
15.4. The Receiving Party acknowledges that a breach of this Section 15 could cause irreparable harm to the Disclosing Party for which monetary damages may not be ascertainable or an adequate remedy, and the Receiving Party agrees that the Disclosing Party will have the right, in addition to all other rights and remedies available to it, to seek injunction or other equitable relief in any court of competent jurisdiction (notwithstanding Section 28), for any violation of this Section 15, and the Receiving Party waives any requirement for the posting of a bond in connection therewith.
16. Fees
16.1. All fees (“Fees”) are either in US Dollars or in your local currency supported by Thinkific. You will pay all Fees as and when specified in the applicable Order Form. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment (“Regulatory Fees”), you will pay such Regulatory Fees as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. If any Regulatory Fees are deducted from the amount received by Thinkific, Thinkific will invoice you for the same. Any Fees owing to Thinkific are due thirty (30) days after the invoice date.
16.2. If the Order Form specifies that Fees are based on usage tiers, then except where the Order Form states otherwise, this Section 16.2 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.
16.3. Unless otherwise specified on the Order Form, all Fees for monthly subscriptions must be paid by credit card monthly in advance of the billing period to which they apply (without deduction or set-off), which amounts may also be pre-paid in advance for longer periods as specified in the Order Form (e.g. lump sum for annual period). If the monthly subscription invoice amount is greater than $5,000 USD, we can accept other payment methods (wire, EFT), however a $25 administration fee will be charged on your monthly invoice in addition to any fees that your chosen payment method may pass on to Thinkific.
16.4. Unless the method of payment has been altered by mutual agreement of the parties, we shall be entitled to charge all amounts you owe Thinkific to the credit card authorized by you.
16.5. 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, Thinkific will provide you with written notice of late payment and, if payment is not received within seven (7) calendar days: (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 are received by Thinkific.
16.6. Thinkific will not refund Fees except where expressly provided in this Agreement.
16.7. 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.
17. Taxes
17.1. 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 now in force or enacted in the future (“Taxes”). For greater certainty, Taxes does not include taxes based on Thinkific’s net income.
17.2. If you are not charged taxes by Thinkific, then You are responsible to determine, collect, report and remit Taxes to the appropriate tax authorities in your jurisdiction and in the jurisdictions of your Customers, Content Providers and Student for all Taxes applicable to the Plus Services and for paying those Taxes 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 to Thinkific, which are Third-Party Tools subject to Section 22.
17.3. To the extent that Thinkific charges these Taxes, they are calculated using the applicable tax rates based on the jurisdiction that you provide to us for you and for your Customers, Content Providers and Students. Such amounts are in addition to the Fees for such products and services and will be billed to your authorized payment method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption which may include, but is not limited to a valid value added tax number, and in some jurisdictions may include an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Similarly, if your Customers, Content Providers and Students are exempt from payment of such taxes, we require either you or your Customers, Content Providers and Students to provide the same information to us. Tax exemption will only apply from and after the date we receive evidence satisfactory to Thinkific of your exemption.
17.4. For payments facilitated by Thinkific Payments, Thinkific will be responsible for (a) determining the Taxes that apply to transactions occurring between you, your Customers, Content Providers, Students and other Authorized Users, in its capacity as an online marketplace facilitator, based on information that you provide to us; and (b) collecting, reporting and remitting such Taxes to the appropriate Tax authorities in a timely manner when due and payable. Thinkific will rely on the information that you provide to us in good faith, and you will be solely responsible for any Tax liability arising from incomplete or inaccurate information that you provide to us, including information about the nature of any transactions with your Customers, Content Providers, Students, and other Authorized Users, or your Tax registration status in any jurisdiction. To the extent required by law, you agree to execute any additional authorization, election or similar documentation to support our remittance of the Taxes in the manner described above. In the event that you become registered for a Tax following registration with us, you must promptly update your Account information. We will not be responsible for any Taxes arising from a change in your registration status where we were not informed on a timely basis, and you will hold us harmless and indemnify us as a result. Thinkific will use reasonable efforts to provide to you any documentation or information that you require to comply with your Tax reporting obligations upon request for the same.
18. Term
18.1. 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 18.2), and (b) the termination of this Agreement in accordance with its terms (the “Term”).
18.2. 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 on renewal by providing you written notice thereof (which notice may be provided by email in accordance with Section 24) at least 60 days prior to the end of the then-current term.
19. Termination
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, 14, 15 or 16 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. Service level failures do not constitute a breach of this Limited Warranty and are exclusively addressed by the SLA.
20. 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 19, 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 19 or as provided elsewhere in this Agreement (including for nonpayment), 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 certain of your Site Content in the manner provided through the Plus Services.
21. Survival
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, 16, 17, 20, 22, 24, 27, 28, 29 and this Section 21 will survive the expiration or termination of this Agreement.
22. Third Party Tools and Experts
We may provide you with (a) 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 (i) Thinkific is not a party to any terms or agreements that may be entered into between you and the providers of such Third-Party Tools or such Third-Party Experts, (ii) Thinkific does not guarantee and is not responsible for the availability of, content provided on, or functionality of, third party sites or Third-Party Tools or the services provided by Third-Party Experts, and Thinkific does not represent, warrant or guarantee that Third-Party Tools or Third-Party Experts will be adequate for your needs, (iii) you are responsible for your own dealings with the providers of Third-Party Tools and Third-Party Experts, (iv) your use of the Third-Party Tools and engagement of Third-Party Experts are at your own risk and discretion, and (v) Thinkific will have no responsibility or liability whatsoever to you or any other person 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.
23. Amendment
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 terms of any purchase order or other form provided by you will modify this Agreement, regardless of any failure by Thinkific to object to such terms. 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 will be limited to the specific obligation or breach waived.
24. Notices
24.1. 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 unless a bounceback or other automated reply is received; (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.
24.2. 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 23 any previous address or email address, as applicable, specified for the party giving the notice.
25. Commercial Communications
You agree that we may send email communications to you and your Authorized Users to convey information about Thinkifics products and services, including promotional information about new or updated products and services, and Thinkfic events. You and your Authorized Users may opt-out of such communications on an individual basis by managing your communication preferences within the Plus Service.
26. Force Majeure
Except for your obligation to pay amounts owing, neither party will 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.
27. Export Control
You will not knowingly export or re-export, directly or indirectly, any product or software received from Thinkific under this Agreement to any destination, entity or person to which such export or re-export is restricted or prohibited by applicable laws. You represent and warrant that you are not on any such restricted or prohibited lists. Thinkific makes no representation or warranty that the Plus Services are appropriate or available for use in any specific country or jurisdiction. You will not use the Plus Services for military or quasi-military projects, unless specifically authorized by the appropriate governmental authority for such purpose.
28. General
The failure of either party 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 governs 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 either party without the prior written consent of the other party, with the exception that either party may unilaterally assign this Agreement to (i) any other entity or person controlling, controlled by, or under common control with, such entity (where “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of an entity, whether through ownership of voting securities, by contract or otherwise), or (ii) an entity that acquires all or substantially all of the business assets of such party to which this Agreement pertains. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. In this Agreement, the term “including” means “including without limitation”. Any ambiguity in this Agreement will be interpreted without regard to which party drafted it. The relationship between the parties is that of independent contractors. There are no third party beneficiaries to this Agreement, and you acknowledge that Thinkific will have no obligation or liability whatsoever to any third parties with which you may do business, including your Authorized Users.
29. 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. The parties irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia.
30. Languages
The parties have agreed that this arrangement will be established and all related documents be written in English. Les parties ont convenu que cette entente sera conclue et que tos les documents connexes soient rédigés en anglais.