Effective Date: September 13, 2022
Welcome to LaborIQ by ThinkWhy!
We hope you find these “Terms of Service” easy to read, but please contact us if you have questions or require clarification regarding our policies. Keep an eye out for words that are bolded—that means that the word is being given a specific definition.
The Terms of Service apply to your use of ThinkWhy’s Services. The term “Services” means any services we provide you, including, for example, the website (www.thinkwhy.com) (“the Website”) and our “Products”, such as our LaborIQ® product, online portal, reports, data insights and visualizations, and dashboards.
If you are using our Services on behalf of an organization, the Terms of Service are binding to you, your organization, your organization’s employees, representatives, successors, and assigns, and anyone who has who has a user license as part of your organization’s ThinkWhy account.
- You may also be bound by an additional written agreement, or “Addendum”, with us.
You may enter into one or more additional written agreements with us regarding our Services or specifying the pricing, length, payment schedule and any other terms specific to your account with ThinkWhy (each referred to as an “Addendum”). An Addendum may be required if, for example, you request to change the duration of your subscription. The terms of such Addendums are in addition to and incorporated into these Terms of Service. If there is a conflict between what the terms of an Addendum say and what the Terms of Service say, then the terms of the Addendum will control.
- By using our Services, you are warranting certain information about yourself and how you will act.
By using our Services (for example, the Website), you represent and warrant that:
You are of legal age to form a binding contract with ThinkWhy;
You understand and agree that the Terms of Service are a legally binding agreement and the equivalent of a signed, written contract;
If you are a representative of a business or an organization, that you are authorized to bind the business or organization to the Terms of Service;
You will provide only true, accurate, complete and current information to ThinkWhy;
Any Personal Information provided to ThinkWhy that was collected by You was collected in compliance with all applicable laws and regulations, including but not limited to the California Consumer Privacy Act (“CCPA”) and the General Data Protection Regulation (“GDPR”); and
You will abide by the Terms of Service.
3. Minors under 18 are not allowed to use our Services.
Our Services are intended for use by business professionals. Persons under 18 years of age are not authorized to use our Services.
4. Our Content, such as our Reports, is our valuable intellectual property. Your right to use it is limited.
Certain laws protect our Content, which includes:
• our Website
• our Products
• our Reports
• all the Content, code, data, works of authorship and materials on our Website, Products, and Reports
• the look and feel, design and organization of our Website, Products, and Reports
ThinkWhy owns, solely and exclusively, all rights, title and interest in and to our Content, including, for example, all intellectual property and proprietary rights. To the extent ThinkWhy’s Content includes any software or information that is licensed from third parties, ThinkWhy’s licensors own, all rights, title and interest in any such licensed software or information. You retain all rights that you possess in salary data for your organization that you import (whether manually or via CSV upload), into our Services and/or Products in the form so imported. Your use of our Content does not grant to you any additional ownership rights.
As part of our Services to you, we provide Reports, which include data insights, dashboards, data visualizations and compiled compensation and labor market reporting (such as LaborIQ®, occupations, wages, etc.). Under no circumstances may you sell, license, or otherwise directly profit off of any portion of a Report or any information obtained from a Report.
Under no circumstances may you “scrape” our Content or any information or data from our Website, Products, or Reports. That means you may not use any robot, spider, scraper, site search/retrieval application, or other automated means to access our Content for any purpose (including, without limitation, to retrieve information from or data mine our Content) without our written consent. You may not bypass our robot exclusion headers or any other measures we may use to prevent or restrict access to our Content.
ThinkWhy owns (or has a right to use) all trademarks, logos, service marks and trade names (collectively referred to as our Trademarks) displayed in our Content. To use any of our Trademarks, you must have our written permission (or the written permission of the actual owner of the Trademark, if they license it to us).
ThinkWhy will let you access, display and use our Content—for your internal use, which includes consulting services offered by you. Providing you agree to comply with the Terms of Service. This right is granted solely to allow you to use our Services as permitted by the Terms of Service. You agree not to remove, alter or obscure any proprietary notices provided in or with our Content.
5. We use a third-party to process your payments and financial information. ThinkWhy is not liable for the third-party payment processor’s actions.
Your payments will be processed through Stripe® or through another third-party payment processor. Payments may not be processed illegally or other prohibited activities.
Your relationship with our third-party payment processor is separate from your relationship with ThinkWhy and may be governed by the terms and conditions contained in the processor’s agreement. While we have full confidence in our payment host, ThinkWhy is not responsible for the actions or omissions of any third-party payment processor.
6. Payment is due to us upon invoice. Our fees are subject to change.
A. Agreement to Pay Without Offset.
As consideration for our Services, you agree to pay us our fees in U.S. dollars. The fees include charges for applicable taxes, levies, duties, governmental charges and expenses, based on your billing ZIP code. You have no right to offset or withhold fees owed to us.
B. Annual Subscription Purchases.
An annual subscription period runs for twelve (12) months. Your annual subscription will start when ThinkWhy confirms your payment and will continue for 12 months. Annual Subscription Fees are paid in full, up-front prior to the start of your subscription. Additionally, you may choose to make quarterly payments over the course of your twelve (12) month subscription period. Payment is due immediately upon receipt of invoice. Your subscription will not be activated until the first payment clears. Subscribers may pay via credit card, ACH, or request to be invoiced and pay via paper check or wire transfer. You or, if you represent an organization, your organization, is responsible for all fee payments owed during the subscription period to which you committed.
Please note that quarterly payment options are available through credit card or ACH transmissions only. Quarterly payments are not available through paper check or wire transfers. You or, if you represent an organization, your organization, is responsible for all fee payments owed during the subscription period to which you committed.
C. Multi-Year Subscription Purchases.
A multi-year subscription period runs for either two-years (24 months) or three-years (36 months). Your multi-year subscription will start when ThinkWhy confirms your payment and will continue for the subscription period you select (2 or 3 years). Multi-Year Subscription Fees are paid in full in advance. Payment is due immediately upon receipt of invoice. Your subscription will not be activated until the first payment clears. Subscribers may pay via credit card, ACH, or request to be invoiced and pay via paper check or wire transfer. Please note that quarterly payment options are available through credit card or ACH transmissions only. Quarterly payments are not available through paper check or wire transfers.
D. Professional Services.
If an applicable Addendum includes the provision of certain professional services (“Professional Services”), then such services shall be provided in accordance with the Statement of Work. Fees for Professional Services must be paid in full in advance. Payment is due immediately upon receipt of invoice.
E. Changes to Fees.
Subscription Fees will remain fixed during your subscription period unless you change products or base packages. Where a price change applies to you, we will charge or invoice you under the new price structure.
ThinkWhy may change the fee structure or add new Products for additional fees at any time in our sole discretion. Any change to the fees for paid Services shall become effective in the billing cycle following notice of such change. ThinkWhy may, at its sole discretion, delay price increases for the duration of your current subscription term. You will be notified in advance if any changes are made that may impact you. If you request two or more subscriptions for the same organization, you may run the subscription periods simultaneously. In that case, ThinkWhy would bill you for any months outside of the simultaneous periods, then adjust the subscription periods on the account so that going forward, they begin and end on the same dates.
7. If you do not pay our fees on time, we may take action against you. You will reimburse us for any collection costs we may incur.
You are responsible for maintaining complete and accurate billing and contact information during your subscription term. If your payment information expires or is otherwise inaccurate, we will send you a notice to correct the information immediately. Subscription payments must be received upon invoice due date. Account access is subject to suspension until all fees are paid in full.
Any amounts not paid by you within 30 days of the date of the invoice may accrue interest beginning on the date of the invoice and ending on the date you pay off the invoice in full. This interest shall accrue at the rate of one and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less) and shall be compounded monthly.
You agree to reimburse us if we incur any costs, expenses, or fees, including reasonable attorney’s fees, in connection with the collection or payment of any amounts due by you for our Services.
8. If you are a subscriber, your subscription is subject to certain additional conditions.
By default, your subscription will renew automatically upon the end of your subscription period to ensure an uninterrupted service experience. Your subscription will be auto-renewed at the current subscription rates for a term of twelve (12) months regardless of the subscription period previously selected. Incentives options in the form of discounts are available for multi-year subscriptions.
Your ThinkWhy Client Success Partner can assist you with longer-term renewals at email@example.com. You will be invoiced in accordance to the terms and billing frequency in your current subscription Renewal..
Renewal invoices will be posted to your account and accessible within Account Settings automatically upon the end of your term.
Renewing Subscribers paying via credit card or ACH will be charged automatically upon invoice posted date. Renewing Subscribers that request to be invoiced and pay via paper check or wire transfer will have 30 days to complete payment to ensure uninterrupted service.
Any renewed subscriptions with invoices not paid by you within 30 days of the date of the invoice will be suspended until payment is made and is subject to legal action by ThinkWhy.
Each subscription runs for the term selected by your organization. Subscribers may stop using our Services at any time during the term but will not be entitled to a refund and will be responsible for any fees owed by the subscriber for the remainder of the subscription period.
The primary contact for your account may provide notice of non-renewal at least thirty (30) days before the end of a subscription period (the “Renewal Notice Deadline”) by (a) switching the appropriate toggle feature located in the “Plan & Billing History” section of Account Settings; or (2) providing written notice to us via email at firstname.lastname@example.org. After the 30-day period has passed, the option to manually provide notice of non-renewal will no longer be available for your current subscription period and will automatically renew.
Subscriptions that are terminated can be reactivated within 60 days by contacting your Client Success Partner or emailing email@example.com. In order to reactivate your subscription, payment is due immediately upon receipt of invoice. Your subscription will not be activated until the first payment clears. The subscription start date will reflect the date in which payment is received.
C. Your Responsibility for Use of Your Account.
Each license included in a subscription is for a single user only. You are not allowed to share your account login credentials or give your login credentials to anyone (other than authorized representatives of your organization, as applicable). We may cancel or suspend your access to the Services if you share your login credentials.
You are responsible for all activities that occur in, on, or through your account, regardless of who did it. It is your responsibility to secure and protect your account and to manage the users within your account. The designated administrator for your account (Primary Contact) that will have the capabilities necessary to provide certain limits by setting user permissions. The administrator will not have full control over limiting the information that can be seen, accessed, or downloaded by other users.
You are also responsible for any and all uses of our Reports that you use or disseminate, including without limitation if you send a Report to a third-party who uses the information in violation of the Terms of Service.
D.Support included with your subscription.
Each subscription includes a dedicated Client Success Partner who will serve as your consultative point of contact and provide the following support:
- Initial onboarding and new user training
- 30-day check-in and quarterly touchpoints to review the status of your business objectives and identify expansion opportunities.
- Assistance and guidance for creating your first Team Benchmarking view.
- Unlimited access to email and phone support for questions that arise throughout your Subscription Term
- Redemption and provisioning of job title credits, where applicable
Support is available Monday - Friday from the hours of 8:30 AM to 5:30 PM CST, excluding holidays.
E. HR Consultant Firms
If you or your organization is an HR Consultancy, meaning you provide one or more categories of HR-related services to another company for a profit, your subscription comes with an allocated number of job title credits to use towards adding job titles to the Website. The number of job title credits available in the website:
- Champion Plan: 25 job title credits
- Engage Plan: 75 job title credits
- Grow Plan: 125 job title credits
- Pro Plan: 200 job title credits
- Enterprise Plan: custom and defined in your subscription terms
Any plans not listed above include five (5) job title credits.
One job title credit is valid for one job title add request. Each job title credit is valid for a twelve -month period. Any unused job title credits will expire at the end of each twelve- month term. All licensed users are authorized to consume job title credits.
E. Your Relationship with ThinkWhy.
You and ThinkWhy are independent contractors, and the Terms of Service are not intended to create an agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between you and ThinkWhy.
G. ThinkWhy’s Access to your Account.
H. Persons Working on Behalf of a Company.
If you create or administer an account on our website or online portal for your employer or for another organization you legally represent, you agree to abide by all of the terms and conditions provided in the Terms of Service with respect to subscribers.
As an administrator or admin for your account, you may not assign user licenses to individuals who are not employees of the organization which holds the subscription contract with ThinkWhy, including but not limited to subsidiaries, holding companies, vendors or clients without prior written approval.. In the event you provide or allow access to ThinkWhy’s platform to individuals or organizations outside of your company, ThinkWhy may, in its sole discretion, limit access to, limit the use of, or terminate any account if a remedy is not made. If during your subscription period you discover you need to add users outside of your organization, or need help assessing compliance with these terms, contact us anytime.
I. Changes to Your Subscription.
If you would like to make changes to your subscription you may contact our Client Success Team via email at firstname.lastname@example.org for assistance. Any changes to reduce or downgrade the level of Services may only be made with respect to a subsequent, future subscription period, provided, any such changes must be communicated to ThinkWhy prior to the Renewal Notice Deadline. A subscriber may not downgrade Services with respect to an active subscription period. Upgrades to your subscription may be made at any time. Depending on what type and size of account you have, your subscription changes may be modifiable by you within our platform. If you so desire, you may add additional users to your subscription at any time, subject to the following restrictions:
• Subscribers on the Enterprise Plan may increase the total number of your users at the per user rate stated in their contract. All users (existing and new) will be subject to prices and term length of the existing subscriptions.
• Subscribers not on the Enterprise Plan may upgrade to a higher tier to add additional user licenses. Additional fees will be pro-rated for the remainder of your subscription period. All users (existing and new) will be subject to prices and term length of the existing subscriptions.
9. The Terms of Service grant ThinkWhy significant rights.
ThinkWhy has the following rights:
• To decline to offer you our Services for any reason or no reason, in our sole discretion.
• To suspend, limit access to, limit the use of, or terminate any account, in our sole discretion.
• To change or alter our Products or Website, the form and nature of either, or any Services provided through either, including requiring payment for some or all uses of them, at any time.
• To review, modify, filter, disable, or remove any and all Content and information from our products or Website.
• To update and download automatically any software provided as part of our Products.
• To cooperate with any law enforcement, government order, or third-party (as required by law) requesting that we disclose Content or information that you provide.
• To terminate, change, upgrade, suspend, limit, or discontinue any aspect of the Services, including, for example, Content, features, hours of availability or equipment required for access.
You agree that the foregoing are rights of, but not obligations of, ThinkWhy, and that ThinkWhy may, but is not obligated to, exercise any of these rights.
10. Don’t violate the law or the Terms of Service.
You may use our Services only for lawful purposes.
In particular, when using our Services:
• Don’t bypass any measures we’ve put in place to secure our Services.
• Don’t use any kind of software or device (whether it’s manual or automated) to “crawl” or “spider” any part of our Website or Products.
• Don’t use, modify, collect, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of our Content, in whole or in part, for any purpose.
• Don’t frame or use framing techniques to enclose our Website or any part thereof.
• Don’t use “scraping” or similar techniques to gather information from our Reports or our Products. That means you may not use any robot, spider, scraper, site search/retrieval application, or other automated means to access our Content for any purpose (including, without limitation, to retrieve information from or data mine our Content) without our written consent. You may not bypass our robot exclusion headers or any other measures we may use to prevent or restrict access to our Content.
• Don’t violate applicable privacy laws and regulations, including but not limited to the CCPA and the GDPR.
As provided in Section 9, we may immediately remove materials that violate the prohibitions above, stop your use of our Services, and/or remove your account, among other things. We may cooperate with any law enforcement authorities or government order or third-party requesting us to disclose the identity of anyone posting such materials.
12. Your use of any services provided by third parties is separate of your use of our Services, so use them at your own risk.
We may offer or incorporate third-party services into our Services. For example, we may connect you with third-party services for payment. Sometimes we will collect a fee from these third-party providers in connection with their services.
Your use of any third-party services will be governed by the terms of service of the third-party provider and is at your own risk.
We cannot and do not make any promises or warranties about the quality of third-party services. You acknowledge that ThinkWhy has no control over third-party providers, and therefore we will not be liable to anyone for problems with third-party services. The availability of third-party services on ThinkWhy’s Websites or the integration of such third-party services with our services does not mean ThinkWhy endorses, authorizes, or otherwise takes responsibility for the actions of any third-party providers.
Our liability is limited to you for your use of third-party services as provided in Section 17 below, and you agree to indemnify us for issues with third-party services as provided in Section 15 below.
13. If you come to our Website from another website, or if you click any links on our Website to another website, you do so at your own risk.
You may be able to link from our Website to third-party website and third-party website may link to our Website (in both cases, referred to as a “Linked Site”). Your use of Linked Sites is completely at your own risk. You acknowledge and agree that ThinkWhy has no responsibility or liability for what you see on or obtain through a Linked Site. We do not know if the content of any Linked Site is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws.
14. Your feedback is welcome.
The more suggestions our users provide, the better the Services become. Any feedback, suggestions, testimonials, endorsements, information or materials conveyed to ThinkWhy by you or any representative of your organization in connection with the Services shall be collectively deemed “Feedback. You agree to grant and hereby grant ThinkWhy a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback without restriction. If we choose not to implement the suggestion, please don’t take it personally. We appreciate it nonetheless.
15. The Terms of Service will apply indefinitely.
All provisions of the Terms of Service survive if you stop using our Services or terminate your account or both, including, for example, our rights regarding any content you’ve already submitted to our Website. Also, everything that you have represented to us in the Terms of Service will survive indefinitely.
16. If you do something wrong and it causes us problems, you will have to pay us (that is, indemnify us) for our trouble.
To the maximum extent permitted by law, you agree to indemnify and hold harmless ThinkWhy, its affiliates, officers, members, owners, directors, managers, employees, agents, and representatives (collectively referred to as “Related Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related in any way to (a) your use of our Services, (b) your submission, posting, transmittal, transfer (whether intentional or unintentional), display, storage, distribution, removal, or any other use of any Personal Information pertaining to yourself or another, (c) your violation of the Terms of Service, (d) your violation of any law or regulation, (e) your violation of any intellectual property right, (f) any claim that your information or any other content provided by you caused damage to a third-party, (g) your misuse of our Content, (h) your use of third-party Services or your relationship with a third-party provider or (i) any other party's access and use of the Services with your account information. You are obligated to indemnify us for these issues even if you have stopped using our Services. ThinkWhy reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with ThinkWhy’s defense of such claim.
If we are subpoenaed by a third-party in relation to a lawsuit in which you are involved or a potential lawsuit against you, you agree that you will pay all of ThinkWhy’s costs associated with responding to and/or opposing the subpoena. This includes, but is not limited to, ThinkWhy’s reasonable attorneys’ fees.
17. WE DISCLAIM ANY WARRANTIES. YOUR USE OF OUR SERVICES AND OUR CONTENT IS AT YOUR OWN RISK.
YOU AGREE TO ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF OUR WEBSITE, OUR SERVICES, AND OUR CONTENT. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER THINKWHY NOR ITS RELATED PARTIES MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO OUR WEBSITE, OUR SERVICES, OR OUR CONTENT AS WELL AS ANY PREDICTIONS OR RECOMMENDATIONS MADE BY OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
NEITHER THINKWHY NOR ANY RELATED PARTIES ENDORSE OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF OUR WEBSITE, OUR SERVICES, OR OUR CONTENT OR THAT OUR WEBSITE, OUR SERVICES OR OUR CONTENT IS NON-DEFAMATORY, NON-INFRINGING OR OTHERWISE LAWFUL OR WITH RESPECT TO ANY PREDICTIONS OR RECOMMENDATIONS MADE BY THINKWHY OR BY OUR SERVICES. NEITHER THINKWHY NOR ANY RELATED PARTIES WARRANT THAT THE FUNCTIONS PERFORMED BY OUR WEBSITE, OUR SERVICES, OR OUR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS IN OUR WEBSITE, OUR SERVICES, OR OUR CONTENT WILL BE CORRECTED. NEITHER THINKWHY NOR ANY RELATED PARTIES GUARANTEE OR WARRANT THAT THE FILES AVAILABLE FOR DOWNLOADING WILL BE FREE FROM INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES, OR PROGRAMS. OUR WEBSITE, OUR SERVICES, AND OUR CONTENT ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “WHERE AVAILABLE” AND “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON OR USE OF OUR WEBSITE, OUR SERVICES, AND OUR CONTENT IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OUR WEBSITE, ANY DOWNLOADS FROM OUR WEBSITE OR THROUGH OUR SERVICES, OR ANY OTHER OF OUR SERVICES.
18.__ OUR LIABILITY TO YOU IS LIMITED. THAT MEANS THAT IF YOU SUFFER LOSSES, WE ARE NOT REQUIRED TO COMPENSATE YOU.__
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THINKWHY OR ANY RELATED PARTY BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, EVEN IF FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THINKWHY’S SERVICES, ANY THIRD-PARTY SERVICES OR THIRD-PARTY PROVIDER, ANY WEBSITE LINKED TO THINKWHY’S WEBSITE, OR THINKWHY’S CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THINKWHY OR A RELATED PARTY IS AWARE OF OR OF ADVISED THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE A CUSTOMER, THE TOTAL DOLLAR AMOUNT OF THINKWHY’S LIABILITY TO YOU SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE AMOUNT OF FEES YOU PAID FOR THINKWHY’S SERVICES IN THE LAST THREE (3) MONTHS.
19. YOU AGREE TO RESOLVE ISSUES BETWEEN YOU AND THINKWHY IN MANDATORY ARBITRATION IN DALLAS, TEXAS, AND NOT BY A COURT OR BY A JURY.
Any dispute or claim relating in any way to the Terms of Service, your relationship with ThinkWhy, or your use of our Services (collectively referred to as a “Claim”) will be resolved exclusively by final and binding arbitration, rather than by a court or a jury. The only exception to such mandatory arbitration is that you are NOT prohibited from resolving any such dispute or Claim as an individual Claim in a small claims court. The exclusive venue for the arbitration shall be Dallas County, Texas.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the Terms of Service as a court would.
If for any reason a Claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. You acknowledge that you make this jury waiver knowingly, voluntarily, and willingly.
This arbitration provision is entered pursuant to the Federal Arbitration Act. The arbitration, and any appeal, shall be governed by the substantive law of the State of Texas and the applicable rules of the American Arbitration Association (“AAA”).
If, for any reason, the arbitration and/or appeal cannot be conducted before AAA or pursuant to AAA rules, and the parties cannot agree to an alternative arbitration service and/or rules, any court of competent jurisdiction in Dallas County, Texas, may appoint an arbitrator and/or select appropriate arbitration rules to govern the arbitration and/or appeal.
Each party shall pay an equal share of the arbitrator(s)’ fees and costs relating to the arbitration, subject to the arbitrator(s)’ authority to reallocate such fees and costs in his or her discretion. In any event, each party shall be responsible for payment of their own attorney’s fees and legal costs.
Either party may seek temporary injunctive relief in federal or state court in Dallas County, Texas, exclusively, at any time until the selection of the arbitrator(s) is completed. Once the selection of the arbitrator(s) is completed, the arbitrator(s) shall assume responsibility for any further action or rulings with respect to any such temporary injunction action. The parties’ consent to personal jurisdiction and venue in the federal and state courts of Dallas County, Texas, solely for the purpose of any such temporary injunction action.
We each agree that any dispute, whether arbitrated or brought in small claims court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Without limiting the generality of the preceding sentence, each party agrees to pursue its Claims on an individual basis and not to (1) join its Claims with any other person or entity’s Claims, (2) pursue any Claim as a representative of a class, as a private attorney general or in any representative capacity, or (3) participate in a class or collective action or mass action with respect to any claim. It is the express intent of the parties that the arbitrator, or, as applicable, small claims court, shall not have the power to award class or collective relief or to determine or order that the dispute should proceed as a class or collective action, whether in arbitration or in any other forum or venue. The parties understand and acknowledge that by entering this arbitration provision, they are waiving their rights to have a court or jury adjudicate their claims.
If any inconsistency arises between the terms of this arbitration provision and any other arbitration agreement applicable to the parties, the terms of this arbitration provision shall control.
The parties adopt and agree to implement the AAA Optional Appellate Arbitration Rules with respect to any award subject to this arbitration provision. Written notice of appeal shall be provided to the opposing party and the arbitration service and shall comply with the requirements of the AAA Optional Appellate Arbitration Rules or such other arbitration appellate rules to which the parties may agree or which a court may designate pursuant to the process described earlier in this arbitration provision.
20. You have two years, or the shortest applicable time under the relevant statute of limitations, whichever is shorter, to sue us if something goes wrong.
Any cause of action you may have with respect to your use of our Website or our Services must be commenced within two (2) years after the claim or cause of action arises.
21. The Terms of Service are governed by Texas law.
22. If a court finds part of the Terms of Service invalid, it won’t invalidate the rest of the Terms of Service.
If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the tribunal should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service shall remain in full force and effect.
Upon termination, those provisions of the Terms of Service that expressly or by their nature survive will continue in full force and effect.
24. You can’t substitute anyone else in your place as a party to the Terms of Service without permission, but we can.
You may not assign the Terms of Service or delegate your obligations under the Terms of Service, or any part of the Terms of Service, without the express written consent of ThinkWhy. You agree that ThinkWhy may assign, transfer, or delegate any of its rights or obligations under the Terms of Service at any time and for any reason without prior notice or your consent.
25. By using our Services, you accept the Terms of Service. We will change them occasionally, so make sure you stay up to date.
Please read the Terms of Service before using our Services. You are legally bound by the Terms of Service each time you use our Services, even if the Terms of Service have been updated since you last read them.
Please do not use our Services if you disagree with any part of the Terms of Service, including, for example:
• the requirement to resolve disputes with us in arbitration (rather than, for example, by suing us in court) (see Section 19 for more);
• the waiver of your right to a jury trial or court resolution to a dispute (see Section 19 for more);
• the prohibition of class action lawsuits against us (see Section 19 for more); and
• the two (2) year time period you have to sue us under the Terms of Service (see Section 20 for more).
We may update the Terms of Service at any time. A version of the Terms of Service becomes effective when it is first posted on our Website. When we make significant changes, we’ll update the date at the top of this page. Using our Services following the posting of a revised or updated Terms of Service means that you accept and agree to the changes, so please check this page to make sure you are up to date. The Terms of Service supersede anything we may have already discussed with you about our Services, except to the extent you have an Addendum with us (as explained in Section 1).
26. If you suspect someone is infringing your registered trademark, please let us know.
27. Your feedback is welcome.
The more suggestions our users provide, the better the Services become. Any feedback, suggestions, testimonials, endorsements, information or materials conveyed to ThinkWhy by you or any representative of your organization in connection with the Services shall be collectively deemed “Feedback. You agree to grant and hereby grant ThinkWhy a non-exclusive, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Feedback without restriction. If we choose not to implement the suggestion, please don’t take it personally. We appreciate it, nonetheless.
ThinkWhy takes trademark rights seriously and will investigate reasonable issues that are brought to its attention. Please keep in mind, however, that sometimes more than one person can own the same or similar trademarks, depending on where and how they are used.
If you believe that a merchant is infringing your registered trademark, then you may send us a takedown request. Please contact us for more information on what information is needed in a takedown request.
27. If you suspect someone is infringing your copyright, please let us know.
We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from our Website infringe your copyright, you may request our removal of those materials (or access to them) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice must include substantially the following:
• Your physical or electronic signature.
• Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on our Website, a representative list of such works.
• Sufficient identification of the material you believe to be infringing.
• Your name, postal address, telephone number, and, if available, email address.
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the written notice is accurate.
• A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive these notices is:
By email at email@example.com or
By mail at:
3800 Maple Avenue, Ste. 530
Dallas, Texas 75219
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on our Website is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.