Think Native LLC
TERMS OF SERVICE
Last Updated: 2.19.20
Welcome, and thank you for your interest in Think Native LLC (“Think Native,” “we,” “our,” or “us”). These terms of service (“Terms”) establish the terms and conditions that apply to you when you use the Service (as defined below).
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. YOU CAN OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING SUPPORT@THINKNATIVE.COM WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.
By using the Service or by clicking “I Agree” you indicate your acceptance of these Terms and your agreement to be bound by these Terms, as well as all applicable laws and regulations. You are not permitted to use the Service if you do not agree to these Terms. Think Native may change, modify, supplement, and/or update these Terms at any time. We will make reasonable efforts to provide you with prior notice of any material changes to these Terms. Your continued use of the Service after the modification of these Terms means that you accept all such changes. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified as of the date indicated above.
OUR SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. IF YOU HAVE A SERIOUS MENTAL CONDITION OR DIAGNOSIS, ARE CONSIDERING TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, ARE HAVING SUICIDAL THOUGHTS, ARE IN THE MIDST OF A PSYCHIATRIC CRISIS OR EMERGENCY, OR IF YOU FEEL YOU OR ANY OTHER PERSON MAY BE IN ANY DANGER, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS.
- Use of the Service.
- Service. The “Service” includes Think Native’s website located at https://www.thinknative.com (“Site”), as it may be updated, relocated, or otherwise modified from time to time, all content and services Think Native makes available through the Site, and all intellectual property contained therein. The Service is a subscriber-based software-as-a-service platform enabling user-generated video marketing, smart matching, and a learning management system to empower consumers to become contributors, and contributors to become champions. The Service enables organizations to increase and measure their missional impact. Any organization that has an active relationship with Think Native under the Think Native Master Subscription Agreement or similar agreement is a “Think Native Partner.” If you are accessing or using the Service on behalf of a Think Native Partner, your use of the Service is governed by the applicable Master Subscription Agreement or similar agreement. Any person who accesses and/or uses the Service on his or her own behalf as a member of the public or on behalf of any third party (other than a Think Native Partner) is a “Think Native User.”
- License. Subject to your compliance with these Terms, Think Native hereby grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service during the Term.
- Deactivation. Think Native may, at any time and without notice to you: (1) restrict, deactivate, and/or terminate your access to the Service (or any portion thereof); or (2) terminate or modify the Service (or any portion thereof). Think Native will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only right is to terminate your use of the Service.
- Use at Your Own Risk. The Service allows Think Native Partners to create campaigns and related materials (“Partner Materials”) and provide those Partner Materials to you. Think Native is not able to review or edit Partner Materials, and we do not exercise any editorial control over Partner Materials. We do not guarantee the legality, reliability, or accuracy of the Partner Materials. If you participate in a Think Native Partner’s campaign, you rely on any Partner Materials provided at your own risk. When you interact directly with a Think Native Partner or another Think Native User, you should be careful about the types of personal information that you share. Think Native cannot control what Think Native Partners or other Think Native Users do with any information you provide.
- Registration; Eligibility; Restrictions.
- Think Native Users. To become a Think Native User, you must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.
- Accuracy of Information. You acknowledge that if you provide any information to us that is untrue, inaccurate, not current, or incomplete, Think Native may terminate these Terms and your continued access and use of the Service.
- Eligibility. You represent and warrant that you are at least 18 years of age and that you have not been previously suspended or removed from the Service or, if you are under 18 years of age, that you are at least 13 years of age and have permission to use the Service from your parent or guardian who has read and agreed to these Terms on your behalf. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY THINK NATIVE. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
- Credentials. As part of the registration process, you will be asked to select a username and password or other login credentials. You are entirely responsible for maintaining the security and confidentiality of your login credentials. You agree to notify Think Native immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at email@example.com. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You are responsible for keeping your login credentials confidential and for notifying us if your login credentials have been hacked or stolen. Think Native will not be liable for any loss that you may incur as a result of someone else using your login credentials or account, either with or without your knowledge. You may be held liable for any losses incurred by Think Native or another party due to someone else using your account or login credentials.
- Your Responsibilities. Your Think Native account is personal to you. You may not use the Service for commercial purposes. You may use the Service solely for lawful purposes, as intended through the provided functionality of the Service. You may not use the Service in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, user accounts, or computer systems, or networks, through hacking, password mining, or any other means. Without limiting any of the foregoing, you may not (and you may not allow or assist any third party to):
(1) use, copy, install, transfer, or distribute the Service, except as specifically described in these Terms;
(2) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service;
(3) remove or alter any copyright, trademark, or other proprietary rights notices contained in or on the Service or in or on any content or other material obtained through the Service or the use of the Service;
(4) probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
(5) reformat, mirror, or frame any portion of the web pages that are part of the Service;
(6) express or imply that any statements you make are endorsed by us, without our prior written consent in each instance;
(7) transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component;
(8) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
(9) harvest or collect information about other Think Native Users without their prior written consent;
(10) undertake, cause, permit, or authorize the translation, reverse engineering, disassembling, or hacking of any aspect of the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by law, or otherwise attempt to use or access any portion of the Service other than as intended by Think Native;
(11) access, tamper with, or use non-public areas of the Service, Think Native’s (and its service providers’) computer systems and infrastructure, or the technical delivery systems of Think Native’s service providers;
(12) harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including Think Native employees, and other Think Native Users;
(13) solicit, or attempt to solicit, personal information from other Think Native Users, except as permitted through the Service’s functionality;
(14) restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about Think Native Users;
(15) gain unauthorized access to the Service, to other Think Native Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
(16) violate any applicable federal, state, or local laws, regulations, or these Terms;
(17) use the Service for any illegal, inappropriate, and/or unauthorized conduct, including using the Service to contact other Think Native Users for sexual or other inappropriate purposes, or using the Service in violation of Think Native’s or any third party’s intellectual property or other proprietary or legal rights; or
(18) use or access the Service to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these provisions and to enforce these Terms.
- Consent to Electronic Communications. By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you, if we have your email address. You may have a right to receive this notice in writing. To receive free written notice of a security breach, please write to us at firstname.lastname@example.org.
- Content Submitted to the Service.
- Materials. By sending or transmitting to us videos, images, content, information, opinions, creative suggestions, ideas, notes, concepts, or other materials (collectively, “Materials”), or by posting such Materials to any area of the Service, you grant Think Native, any applicable Think Native Partners, and their respective designees, a worldwide, non-exclusive, sublicenseable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable license to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale, and import such Materials in any media now known or hereafter developed, without compensation to you. You hereby waive any moral rights or other rights with respect to attribution of authorship regarding Materials that you may have under applicable law. None of the Materials will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our or any Think Native Partners’ part and we will not be liable for any use or disclosure of any Materials. Think Native may remove or alter any Materials at any time for any reason. We neither endorse nor are responsible for any opinion, advice, information, or statement made or displayed on the Service by any Think Native Partner or Think Native User. We are not responsible for any errors or omissions in content, for hyperlinks embedded in messages, or for any results obtained from the use of such information. Under no circumstances will Think Native, Think Native Partners, and/or their respective affiliates, suppliers, or agents be liable for any loss or damage caused by your reliance on such information obtained through the Service. We cannot and do not take responsibility for the veracity, reliability, or completeness of any opinion, advice, information, or statement available on the Service.
- Monitoring. We have the right (but not the obligation) to: (1) monitor the Service and Materials; (2) alter or remove any Materials; and (3) disclose Materials and the circumstances surrounding their transmission to any third party in order to operate the Service, protect ourselves, our sponsors, and our members and visitors, and to comply with legal obligations or governmental requests. If you believe any content violates our member policies, please contact Think Native immediately at email@example.com so that we can consider its editing or removal.
- Rights in Materials. You are solely responsible for your Materials and the consequences of posting them on the Service. By posting Materials, you represent, warrant, and covenant that: (1) you are the creator and owner of the Materials or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your Materials do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) slander, defame, or libel any other person; (3) your Materials do not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your Materials do not contain any confidential information of any third party. We reserve all rights and remedies against any Think Native Users who breach these representations and warranties.
- Sending Messages. The Service may allow Think Native Users to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Think Native may terminate such privileges of any Think Native User at any time and for any reason, without any liability to such Think Native User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a Think Native User sends you an objectionable Message, please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree that Think Native may monitor Messages for compliance with these Terms, and therefore, you should not consider any Messages to be confidential or proprietary. You hereby grant us an assignable, sublicensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transfer to the intended recipient through the Service and for such other purpose as Think Native may deem appropriate in its sole discretion.
- Payment Terms and Order Processing.
- To access certain features of the Service, we may require you to pay fees, and may provide you the option to activate recurring automatic payments for those fees. Before you pay any fees, including before activating or updating any recurring payments, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Service, you authorize Think Native to periodically charge, on a going-forward basis and until cancellation, all accrued sums on or before the payment due date for the accrued sums. You may cancel recurring charges at any time via the functionality of the Service or by emailing Think Native directly at email@example.com. It may take up to three business days for the update or cancellation to take effect.
- All fees are in U.S. Dollars and are non-refundable. Think Native may change the fees for the Service or any feature of the Service, including by adding fees, on a going-forward basis at any time. If Think Native changes the fees for the Service, including by adding additional fees or charges, you will be provided advance notice of those changes and the opportunity to accept the changes. If you do not accept the changes, Think Native may discontinue providing the Service to you.
- Think Native will charge the payment method you specify at the time of purchase. You authorize Think Native to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Think Native may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Contests. Think Native may provide contests on the Service. The rules, regulations, and procedures governing such contests (“Contest Rules”) will be accessible through a hypertext link displayed on the webpage where the contest or game is located. By entering or participating in any of our contests or games, you agree to be subject to the Contest Rules as well as these Terms. If there is a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
- Term and Termination.
- Term. The term of these Terms will commence on the date on which you first access or utilize the Service in any way and will continue so long as you continue to access or utilize the Service, unless earlier terminated by Think Native.
- Termination and Other Remedies. Think Native may take whatever lawful actions it may deem appropriate in response to actual or suspected violations of these Terms including termination of these Terms, the suspension or termination of your access and/or account, or blocking you from access to the Service.
- Effect of Termination. The following Sections of these Terms will survive termination or expiration of these Terms: 1.A, 1.C, 1.D, 1.E, 2, 4–6, 7.C, and 8–30. Payments by you, which accrue or are due before termination or expiration of these Terms, will continue to be payable by you, and amounts owed to Think Native at the time of such termination or expiration, will continue to be owed by you after such expiration or termination.
- Proprietary Information. You acknowledge and agree that: (1) the Service, including any content, modifications, enhancements, and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”), is owned by Think Native and its licensors, as applicable; (2) the Proprietary Information contains valuable copyrighted and proprietary material of Think Native; (3) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (4) you have no rights in the Proprietary Information, other than the rights and licenses specifically granted to you pursuant to these Terms.
- Trademarks. You acknowledge that Think Native has acquired, and is the owner of, trademark rights in the name and word mark “Think Native” and in the other marks and design marks displayed on the Service. You acknowledge that this name and these marks are famous and internationally known. You will not, at any time or for any reason, challenge the validity of, or Think Native’s ownership of, the foregoing name and marks, and you waive any rights you may have at any time to do so. You may not use our name or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing name and marks by you will inure exclusively to the benefit of Think Native. All marks shown on the Service but not owned by Think Native are the property of their respective owners.
- Disclaimer of Warranty.
- DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. YOU ACKNOWLEDGE THAT, BECAUSE OF THE NATURE OF THE INTERNET, MOBILE NETWORKS, AND THE DEVICES WHICH ACCESS THE INTERNET AND/OR MOBILE NETWORKS, THE SERVICE MAY NOT BE ACCESSIBLE WHEN NEEDED, AND THAT INFORMATION, DATA, AUDIO, AND VIDEO TRANSMITTED OVER THE INTERNET AND/OR MOBILE NETWORKS MAY BE SUBJECT TO INTERRUPTION OR THIRD-PARTY INTERCEPTION AND MODIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, THINK NATIVE DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. TO THE FULLEST EXTENT PERMITTED BY LAW, NONE OF THINK NATIVE, ITS AFFILIATES OR SERVICE PROVIDERS, THINK NATIVE’S CONTENT PROVIDERS, AND/OR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, EMPLOYEES, AGENTS, AND/OR CONTRACTORS (COLLECTIVELY, THE “THINK NATIVE PARTIES”) WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICE. THINK NATIVE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES, OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, THE INTERNET, OR FOR YOUR MISUSE OF ANY CONTENT AND INFORMATION ACCESSED THROUGH THE SERVICE. YOUR USE OF THE SERVICE AND YOUR RELIANCE UPON ANY OF THE RESPECTIVE CONTENT IS AT YOUR SOLE RISK.
- Third-Party Information. You acknowledge that any information you obtain from another Think Native User or from a Think Native Partner comes from those individuals or entities, and not from Think Native, and that Think Native, to the fullest extent permitted by law, is not in any way responsible for any of the information these third parties may supply or for any statements, claims, or representations they may make. To the fullest extent permitted by law, Think Native disclaims any such statements, claims, or representations and the same do not expand or otherwise modify these Terms. If you are dissatisfied with the Service, your sole and exclusive remedy is to stop accessing and using the Service.
- Limitation of Liability.
- LIMITATION. TO THE FULLEST EXTENT PERMITTED BY LAW: (1) EACH THINK NATIVE USER IS SOLELY RESPONSIBLE FOR: (A) HIS OR HER USE OF THE SERVICE; AND (B) ANY DAMAGES INCURRED BY HIM OR HER OR ANY THIRD PARTY THAT ARISE FROM OR ARE RELATED TO THE SERVICE; (2) THE AGGREGATE LIABILITY OF THE THINK NATIVE PARTIES FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES PROVED, AND NOT TO EXCEED THE GREATER OF THE AMOUNT OF FEES PAID BY YOU UNDER THIS AGREEMENT OR $100; AND (3) NONE OF THE THINK NATIVE PARTIES WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH THINK NATIVE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INDEPENDENT INVESTIGATION. YOU REPRESENT THAT YOU HAVE INDEPENDENTLY INVESTIGATED THE ADVISABILITY OF USING THE SERVICE AND THE POSSIBLE RISKS INVOLVED IN USING THE SERVICE.
- Third-Party Disputes. THINK NATIVE IS NOT AFFILIATED WITH ANY OTHER THINK NATIVE USER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY OTHER THINK NATIVE USER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE SERVICE, INCLUDING YOUR EMPLOYER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THINK NATIVE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURERS, AND EMPLOYEES) FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Force Majeure. Think Native will not be liable for any delay or failure to perform any obligation herein if the delay or failure is due to unforeseen events that are beyond Think Native’s reasonable control, such as strikes, blockade, war, terrorism, riots, natural disasters, epidemic, or governmental action.
- Indemnity. To the fullest extent permitted by law, you will defend, indemnify, and hold the Think Native Parties harmless against any loss or damage of any kind (including attorneys’ fees and lost revenues) arising from: (1) any breaches by you of these Terms or any representation, warranty, or covenant contained in these Terms; (2) any use of the Service not specifically authorized in these Terms or on the Service; (3) any Materials you post to the Service; and (4) any claims and actions against any Think Native Party by other parties to whom you allow access to the Service.
- Procedure. We reserve the right, at our own expense, 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 our defense of such claim. You will not, in any event, settle any such claim or matter without our written consent.
- Additional Service Features.
- Access to Third-Party Services. The Service may contain information on products and services provided by Think Native Partners and other third parties, and links (including advertisements) to third-party websites (collectively, “Third-Party Services”). Third-Party Services are provided only as a convenience to Think Native Users. Think Native does not review or control Third-Party Services, and Think Native does not make any representations or warranties, express or implied, regarding Third-Party Services. Inclusion of any Third-Party Services in the Service does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Think Native with respect to any Third-Party Services. Think Native is under no obligation to maintain any link on the Service and may remove a link at any time in its sole discretion for any reason whatsoever.
- Dispute Resolution.
- Generally. In the interest of resolving disputes between you and Think Native in the most expedient and cost-effective manner, you and Think Native agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THINK NATIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THESE DISPUTE RESOLUTION TERMS WILL APPLY TO YOU AND THINK NATIVE UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 15.I (OPT OUT).
Whether to agree to arbitration is an important business decision. It is your decision to make, and you should not rely solely on the information provided in these Terms as it is not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
- Exceptions. Despite the provisions of Section 15.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Think Native will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Think Native. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail within the applicable statute of limitations period (“Notice”). Think Native’s address for Notice is: 135 5th Ave. S. #140, Franklin, Tennessee 37064. The Notice must: (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Think Native may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Think Native must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Think Native will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Think Native in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
- Fees. If you commence arbitration in accordance with these Terms, Think Native will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Nashville, Tennessee, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Think Native for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND THINK NATIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ. WHICH ARE NOT COVERED BY THIS SECTION 15 (DISPUTE RESOLUTION)). Unless both you and Think Native agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Think Native makes any future change to this arbitration provision, other than a change to Think Native’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Think Native’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Think Native. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
- Enforceability. If Section 15.F (No Class Actions) is found to be unenforceable or if the entirety of this Section 15 (Dispute Resolution) is found to be unenforceable, then the entirety of this Section 15 (Dispute Resolution) will be null and void and the exclusive jurisdiction and venue described in Section 19 (Governing Law; Choice of Forum) will govern any action arising out of or related to these Terms or your use of the Service.
- Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 15 (Dispute Resolution), you may opt out of this Section 15 (Dispute Resolution) by notifying Think Native in writing of your decision by sending, within 30 days of the date you receive these Terms, an electronic message to firstname.lastname@example.org, stating clearly your full name and intent to opt out of this Section 15 (Dispute Resolution). Should you choose not to opt out of this Section 15 (Dispute Resolution) within the 30-day period, you and Think Native will be bound by the terms of this Section 15 (Dispute Resolution). You have the right to consult with counsel of your choice concerning this Section 15 (Dispute Resolution). You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Section 15 (Dispute Resolution).
- Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Think Native infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
- identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Think Native to locate the material on the Service;
- the name, address, telephone number, and email address (if available) of the complaining party;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Think Native a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be penalties for false claims under the DMCA.
- Protected Activity Not Prohibited. To the extent permitted by applicable law, nothing in these Terms will in any way limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding (“Protected Activity”) that may be conducted by any federal, state, or local government agency or commission (“Government Agencies”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Think Native. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Think Native confidential information to any parties other than the Government Agencies.
- Governing Law; Choice of Forum. The laws of the State of Tennessee, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in Nashville, Tennessee and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- Feedback. If you provide any feedback to Think Native concerning the functionality and performance of the Service (including identifying potential errors and improvements), you hereby assign to Think Native all right, title, and interest in and to such feedback, and Think Native is free to use such feedback without payment or restriction.
- Severability. If any provision of these Terms is held invalid, illegal, or unenforceable, such provisions will be modified, or if not possible, severed, to reflect the fullest valid, legal, and enforceable expression of the intent of the parties, and the remainder of these Terms will not be affected thereby.
- Relationship of Parties. Nothing in these Terms will be deemed to create an employer-employee relationship between Think Native and you, nor any agency, joint venture, or partnership relationship between the parties. Neither party will have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
- Waiver. No delay, omission, or failure to exercise any right or remedy provided under these Terms will be deemed to be a waiver thereof or an acquiescence to the event giving rise to such right or remedy, or a waiver of or acquiescence to any other right, remedy, or event.
- Assignment. Neither these Terms nor any of the rights granted to you herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express prior written permission of Think Native and any attempt to do so will be null and void. Think Native may assign or transfer these Terms at any time without your permission.
- Third-Party Beneficiaries. The provisions of these Terms relating to the rights of Think Native service providers and Think Native Partners are intended for the benefit of such service providers and Think Native Partners, and such service providers and Think Native Partners, as third-party beneficiaries, will be entitled to enforce such provisions in accordance with these Terms, irrespective of the fact that they are not parties to these Terms.
- Injunctive Relief; Attorneys’ Fees. If either party breaches Section 8 (Ownership), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
- Export Controls. You hereby represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Interpretation. If Think Native provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.”
- NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Think Native Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.