Terms of Service

These Terms of Service (“Terms”) apply to your access to and use of (i) the website located at https://thinksensory.com/ (or any successor links) and all associated web pages, websites, and social media pages (the “Site”) provided by ClimbRx Inc., doing business as Think Sensory (“Think Sensory,” “ClimbRx,” “we,” “our” or “us”), and (ii) online services (including the Site, together the “Services”).

BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 17, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND THINK SENSORY WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.

We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services (“Supplemental Terms”). The Supplemental Terms may include our General Release & License Agreement. Any Supplemental Terms become part of your agreement with us if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.

1. Your Information

You may provide certain information to Think Sensory in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS or text messages, and other types of communication from Think Sensory via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Think Sensory in connection with the Services is accurate. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy at https://thinksensory.com/privacy-policy/.

2. Eligibility and Use Restrictions

Age. Users under 18 years of age (or the age of legal majority where you live) may not use our Services.

Jurisdiction. Our Services are currently intended for use in the United States.

Use. You may only use our Services for personal, educational, or professional development purposes consistent with the intended use of the platform.

3. Accounts

You must create an account with Think Sensory to use our Services. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You agree that your account is not transferable and that in the event of your death, incapacity, or unavailability, we may terminate any rights to your account or User Content.

4. User Content

Our Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, videos, and other materials (collectively, “User Content”). When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to make any of your User Content publicly available through the Services, you do so at your own risk.

Except for the license you grant below, as between you and Think Sensory, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant Think Sensory and our end users a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.

You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:

Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;

May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;

Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;

Impersonates, or misrepresents your affiliation with, any person or entity;

Contains any unsolicited promotions, political campaigning, advertising, or solicitations;

Contains any private or personal information of a third party without such third party’s consent;

Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content;

In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Think Sensory or others to any harm or liability of any type.

Enforcement of this Section 4 is solely at Think Sensory’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.

We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:

Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;

Terminate or suspend your access to all or part of the Services if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;

Take any action with respect to your User Content that is necessary or appropriate, in Think Sensory’s sole discretion, to ensure compliance with applicable law and these Terms or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests);

Cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services.

5. Prohibited Conduct

You will not use our Services if you are not eligible to use our Services in accordance with Section 2 and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:

Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;

Engage in any form of elder abuse or any other harassing, threatening, intimidating, predatory, or stalking conduct;

Use or attempt to use another user’s account or information without authorization from that user and Think Sensory;

Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

Sell or resell our Services;

Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;

Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;

Reverse engineer any aspect of our Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Think Sensory grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Think Sensory reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;

Develop or use any applications that interact with our Services without our prior written consent;

Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms or any applicable law.

Enforcement of this Section 5 is solely at Think Sensory’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.

6. Endorsements and Testimonials

You will not use the Services to provide endorsements or testimonials (1) that are deceptive, misleading, or inaccurate or that otherwise violate applicable law or FTC guidance, (2) without having personal, first-hand knowledge of the products or services subject to your endorsements or testimonials, or (3) if you lack the relevant expertise or qualifications or have not performed sufficient evaluation, examination, or testing of the products or services subject to your endorsements or testimonials. If you use the Services to provide endorsements or testimonials, you will disclose any relationship or connection between you and the person or entity for whom you are providing the endorsement or testimonial, including any sponsorship or compensation you might receive for providing the endorsement or testimonial, in compliance with applicable law and FTC guidance.

7. Events

Through the Services we may host or make available live, in-person or virtual events. By participating in these events you acknowledge and agree that your image and likeness may be recorded by us and third parties and that any User Content or other information you make available during these events may be freely used by us or other third parties. You hereby (i) waive all rights to inspect or approve any such uses and (ii) release Think Sensory from any claims related to such recordings or uses.

8. Purchases, Subscriptions, and Promotional Offers

Purchases. When you make a purchase through the Services (each such purchase, a “Transaction”), you must provide accurate and up-to-date payment information, such as your credit card number, the expiration date of your credit card and your billing address (collectively, “Payment Information”). By initiating a Transaction, you represent and warrant that you have the legal right to use the Payment Information for the Transaction. You authorize us and our third-party service providers to charge Transaction amounts, including applicable fees and taxes, to the payment methods identified in your Payment Information. We may offer payment options through third-party providers, including Klarna. If you choose to pay using Klarna, your transaction will also be subject to Klarna’s terms and conditions, available at https://www.klarna.com/us/terms-and-conditions/. Additionally, you are responsible for any additional charges that your bank or other financial service provider may levy on you. All payments made are non-refundable and non-transferable except as expressly provided in these Terms or as required by applicable laws. No Transaction is binding on Think Sensory until accepted and confirmed by Think Sensory. If you have any concerns or objections regarding charges, you will raise them with us first and you will not cancel or reject any credit card or third-party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Think Sensory. Think Sensory reserves the right to not process or to cancel Transactions in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Think Sensory deems appropriate in its sole discretion. Think Sensory also reserves the right, in its sole discretion, to take steps to verify your identity in connection with a Transaction. You may need to provide additional information to verify your identity before completing your Transaction (such information shall be included within the definition of Payment Information). Think Sensory will either not charge you or will refund the charges for Transactions that we do not process or cancel. Prices for the Services are subject to change at any time, but changes won’t affect any Transactions that Think Sensory has already accepted, except that Subscription Fee price changes for Recurring Subscriptions (as each is defined below) will take effect when indicated in our notice to you. If you do not wish for your Recurring Subscription to renew with the new Subscription Fee, you must cancel it in accordance with Section 8(b) below.

Automatically Renewing Subscriptions. Subscriptions may be made available on either a monthly or a yearly basis (“Subscription Periods”) for the recurring fee indicated at the time you enroll in the subscription (“Subscription Fee”). Such subscriptions (“Recurring Subscriptions”) are continuous until you cancel them, and you will be charged the Subscription Fee both (i) when you initially enroll in a Recurring Subscription or when your Promotional Offer (defined in Section 8(c) below) to a Recurring Subscription ends and (ii) at the beginning of each subsequent Subscription Period until you cancel. You hereby authorize Think Sensory to use the Payment Information you have provided to automatically charge you the Subscription Fee at the beginning of each Subscription Period until you cancel your Recurring Subscriptions. You must cancel your Recurring Subscription at least 24 hours before the end of the current Subscription Period to avoid being charged the Subscription Fee for the next Subscription Period. If you purchased your Recurring Subscription via the Site, you can cancel by visiting the membership tab in your profile and clicking “cancel.” Contact us by email at support@thinksensory.com if you need any assistance with canceling a Recurring Subscription. Where permitted under applicable law, you will not receive a refund for any Subscription Fees you already paid before your cancellation became effective, and you will continue to have access to your membership benefits until the end of your then-current Subscription Period.

Promotional Offers. You may be offered a trial period before your Recurring Subscription begins or a discounted initial Subscription Fee on a Recurring Subscription through the use of promotional codes, coupon codes, offer codes, or other promotional discounts (each a “Promotional Offer”). If we offer you a Promotional Offer, the specific terms of your Promotional Offer will be provided in the marketing materials describing the particular offer or at registration (“Offer Terms”). You must meet all eligibility requirements stated in these Terms and the Offer Terms to enroll in a Promotional Offer. Unless stated otherwise in the Offer Terms, Promotional Offers are only for new customers who have not previously subscribed to a Service or enrolled in a Promotional Offer. Think Sensory reserves the right, in its discretion, to determine your Promotional Offer eligibility, and to modify or cancel a Promotional Offer at any time. The benefits granted by a Promotional Offer only last for the period of time stated in the Offer Terms (the “Promotional Period”). Promotional Offers for discounted initial Subscription Fees (“Promotional Subscriptions”) require enrolling in a Recurring Subscription. The Subscription Fee for your Promotional Subscription will, during the Promotional Period, be the price stated in the Offer Terms. Upon the end of the Promotional Period, your Recurring Subscription will automatically renew at the then-current price. If you do not wish to be charged at the then-current price, you must cancel your Recurring Subscription as stated in Section 8(b) at least 24 hours before the end of the Promotional Period. If you enroll in a Promotional Offer for temporary access to Think Sensory that does not require enrolling in a Recurring Subscription, you will lose access to Think Sensory at the end of the Promotional Period unless you have enrolled in a subscription to continue your access. If you receive a Promotional Offer in connection with your access to a third-party product or service, you will lose access to Think Sensory if you do not maintain your access to such product or service, unless otherwise stated in the Offer Terms. ONCE ANY FREE PORTION OF YOUR PROMOTIONAL PERIOD ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) UNTIL IT IS CANCELED IN ACCORDANCE WITH SECTION 8(B) ABOVE, UNLESS YOU CANCEL AT LEAST 24 HOURS PRIOR TO THE END OF YOUR PROMOTIONAL PERIOD. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE PROMOTIONAL PERIODS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION. If you initiated your Promotional Offer via the Site, you can cancel by visiting the Memberships tab in your profile and selecting “cancel.”

9. Refund and Cancellation Policy

Memberships. You may cancel your membership at any time by visiting the membership tab in your profile and selecting “cancel.” Cancellations take effect at the end of your current billing period, and you will retain access to membership benefits until that date. Membership fees already paid are non-refundable due to the digital nature of the product, except where required by applicable law.

Courses. You may request a refund for a course purchase within 7 days of the purchase date, provided that you have not accessed any of the course content. Once any course content has been accessed, the purchase is final and no refund will be issued. To request a course refund, contact us at support@thinksensory.com.

Printable Resources. All sales of downloadable printable resources are final. Because these products are delivered digitally and available for immediate download upon purchase, refunds will not be issued once the download link has been made available.

Summit Access Passes. Refund eligibility for summit access passes will be stated in the specific terms for each summit event at the time of purchase.

Provider Cancellation. If Think Sensory cancels a course or professional development activity, all enrolled participants will receive a full refund within 30 days of the cancellation date.

If you believe a charge was made in error, please contact us at support@thinksensory.com before initiating a dispute with your payment provider. We ask that you make a reasonable attempt to resolve the matter directly with us first.

10. Ownership; Limited License

The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by Think Sensory or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections 4 and 5), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.

11. Trademarks

ClimbRx Inc. and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Think Sensory and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

12. Feedback

You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Think Sensory or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in Think Sensory’s sole discretion. Think Sensory will exclusively own all improvements to, or new, Think Sensory products, services, or Services based on any Feedback. You understand that Think Sensory may treat Feedback as nonconfidential.

13. Repeat Infringer Policy; Copyright Complaints

Our Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our “DMCA Policy”).

Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringe any copyright that you own or control, you may notify Think Sensory’s designated agent (your notification, a “DMCA Notice”) as follows:

Designated Agent: Nicole Day Address: 4171 24th Ave N, Fargo, ND 58102, United States Telephone Number: +17015660452 Email Address: nicoled@thinksensory.com

Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Think Sensory for certain costs and damages.

Our Response to DMCA Notices. Upon receipt of a DMCA Notice meeting the requirements of Section 512(c)(3) of the DMCA, we may (i) remove or disable access to the allegedly infringing content (the “Allegedly Infringing Content”), (ii) take reasonable steps to notify the user who provided the Allegedly Infringing Content (the “Allegedly Infringing User”) that access to the Allegedly Infringing Content has been disabled or the Allegedly Infringing Content has been removed, (iii) notify the party who provided the DMCA Notice with respect to the Allegedly Infringing Content (the “Original Complaining User”) of any counter notifications that we receive in accordance with Section 13(d) from the Allegedly Infringing User, and (iv) replace or restore the Allegedly Infringing Content in accordance with Section 13(e). In accordance with our DMCA Policy, if we determine that the Allegedly Infringing User has provided allegedly infringing content numerous times on or through our Services, we may also terminate the account of such user or terminate the ability of such user to add content to our Services.

Counter Notices. If you believe that your content was removed or disabled in accordance with this Section 13 by mistake or misidentification, you may send a counter notice to our designated agent as specified above (your counter notice, a “DMCA Counter Notice”). Please see Section 512(g)(3) of the DMCA for the requirements of a proper counter notification. If you knowingly materially misrepresent that any content on our Services was removed or disabled by mistake or misidentification, you may be liable to Think Sensory for certain costs and damages.

Our Response to DMCA Counter Notices. When Think Sensory receives a DMCA Counter Notice meeting the requirements of Section 512(g)(3) of the DMCA with respect to any Allegedly Infringing Content, Think Sensory may send a copy of the DMCA Counter Notice to the Original Complaining User informing that user that we will replace or restore the Allegedly Infringing Content. Unless our designated agent described in Section 13(b) receives notice that the Original Complaining User files an action seeking a court order against the Allegedly Infringing User within fourteen business days of receiving the copy of the Allegedly Infringing User’s DMCA Counter Notice, we may restore the removed or disabled content.

14. Third-Party Content

Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (a) the use and availability of the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.

Specifically, certain items of independent, third-party code may be utilized in connection with the Services that may be subject to open-source licenses (“Open-Source Software”). The Open-Source Software is licensed to us under the terms of the license that accompanies such Open-Source Software and may be licensed to you under the terms of the same license or through other terms. Nothing in the Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open-Source Software.

We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.

We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.

15. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Think Sensory and our officers, directors, agents, partners, and employees (individually and collectively, the “Think Sensory Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Think Sensory Parties of any third-party Claims, cooperate with Think Sensory Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). The Think Sensory Parties will have control of the defense or settlement, at Think Sensory’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Think Sensory or the other Think Sensory Parties.

16. Disclaimers

Your use of our Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Think Sensory disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Think Sensory does not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While Think Sensory attempts to make your use of our Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Think Sensory, Think Sensory Parties, and Think Sensory’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.

17. Limitation of Liability

To the fullest extent permitted by applicable law, Think Sensory and the other Think Sensory Parties will not be liable to you under any theory of liability — whether based in contract, tort, negligence, strict liability, warranty, or otherwise — for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Think Sensory or the other Think Sensory Parties have been advised of the possibility of such damages.

The total liability of Think Sensory and the other Think Sensory Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Services in the preceding 12 months.

The limitations set forth in this Section 17 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Think Sensory or the other Think Sensory Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

18. Release

To the fullest extent permitted by applicable law, you release Think Sensory and the other Think Sensory Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

19. Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND THINK SENSORY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND THINK SENSORY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND THINK SENSORY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. THINK SENSORY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.

For any dispute or claim that you have against Think Sensory, that Think Sensory has against you or that you have, or Think Sensory has, in each case arising from, relating to, or stemming from these Terms, our Services, or any aspect of the relationship between you and Think Sensory as relates to these Terms, our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and Think Sensory agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Think Sensory, you will first contact Think Sensory by sending a written notice of your Claim (“Claimant Notice”) to Think Sensory by certified mail addressed to 4171 24th Ave N, Fargo, ND 58102, United States or by email to support@thinksensory.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Think Sensory asserts a Claim against you, Think Sensory will first contact you by sending a written notice of Think Sensory’s Claim (“Think Sensory Notice”), and each of a Claimant Notice and Think Sensory Notice, a “Notice”) to you via email to the primary email address associated with your account. The Think Sensory Notice must (i) include the name of a Think Sensory contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If you and Think Sensory cannot reach an agreement to resolve the Claim within thirty (30) days after you or Think Sensory receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Think Sensory first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.

Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Think Sensory, including any disputes in which you or Think Sensory seek injunctive or other equitable relief for the alleged unlawful use of your or Think Sensory’s intellectual property or other infringement of your or Think Sensory’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 19(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

These Terms affect interstate commerce, and the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.

All Claims must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:

1. YOU AND THINK SENSORY AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND THINK SENSORY ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Think Sensory or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
2. For any arbitration you initiate, you will pay the consumer filing fee, and Think Sensory will pay the remaining AAA fees and costs. For any arbitration initiated by Think Sensory, Think Sensory will pay all AAA fees and costs.
3. For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
4. If you or Think Sensory submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Think Sensory agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Think Sensory agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
5. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
6. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Think Sensory or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Think Sensory understand and agree that when twenty-five (25) or more similar claims are asserted against Think Sensory or you by the same or coordinated counsel or are otherwise resolved, your or Think Sensory’s Claim might be delayed. For such coordinated actions, you and Think Sensory also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Think Sensory shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Think Sensory or you.

One Year to Assert Claims. To the extent permitted by law, any Claim by you or Think Sensory relating in any way to these Terms, our Services, or any aspect of the relationship between you and Think Sensory as relates to these Terms or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Think Sensory will not have the right to assert the Claim.

You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at support@thinksensory.com. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 20.

If any portion of this Section 19 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 19 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 19 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 19 will be enforceable.

Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 19 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.

20. Governing Law

Any Claims will be governed by and construed and enforced in accordance with the laws of the State of North Dakota, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of North Dakota or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 19, then the state and federal courts located in the State of North Dakota will have exclusive jurisdiction. You and Think Sensory waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

21. Modifying and Terminating Our Services

We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Think Sensory in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.

22. Severability

If any portion of these Terms other than Section 19 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

23. Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.

24. Miscellaneous

Think Sensory’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.

If you have a question or complaint regarding the Services, please send an email to support@thinksensory.com. You may also contact us by writing to 4171 24th Ave N, Fargo, ND 58102, United States. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us.