Terms of Service
Last Updated: September 28, 2020
Thank you for using Thinking Cup’s platform and products, services, and features available to you on the platform (collectively, the “Service”).
The Service consists of an online platform through which Tutors may offer sessions to Parents, and Parents may purchase such sessions for the benefit of their children, enriching their education. While TCD strives to provide high standards of service, you acknowledge and agree that: (1) TCD is a provider of online tools to facilitate the purchase, sale, and provision of Sessions, (2) TCD is not a broker, agent (except as expressly set forth below) or insurer, and (3) TCD disclaims all liability for the conduct of Tutors, Parents, or any other Users of the platform or sessions.
Please read this Agreement carefully and make sure you understand it. If you do not understand the Agreement, or do not accept any part of it, then you may not use the Service.
Who may use the Service?
If you are under 18, you represent that you have your parent or guardian’s permission to use the Service. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Service, you are subject to the terms of this Agreement and responsible for your child’s activity on the Service.
If you are using the Service as an independent contractor or on behalf of a company or organization, you represent that you have authority to act in that capacity and that such entity accepts this Agreement.
Use of the Service
TCD’s Service is an online platform for Parents to find and book sessions for the benefit of their child or children, and for Tutors to sell and conduct their sessions. Sessions include video, audio, graphics, photos, text, branding, interactive features, software, metrics, and other materials whether provided by you, TCD or a third-party tutor (collectively, “Content”).
Content is the responsibility of the person or entity that provides it to the Service. TCD serves as a limited agent of each Tutor for the purpose of accepting payments from a Parent on behalf of the Tutor. While TCD strives to provide a safe and welcoming environment for its Users, you agree that all of these risks are ultimately borne by you, and not TCD. TCD does not control the behavior of Users or the quality of the sessions. As a result, TCD cannot guarantee the authenticity, quality, safety, legality, or appropriateness of the content.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify TCD of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. TCD will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: TCD is constantly changing and improving the Service to make performance or security improvements, change functionality and features, comply with law, or prevent illegal activities on or abuse of our systems. TCD reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that TCD will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that TCD may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on TCD’s servers on your behalf. You agree that TCD has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that TCD reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that TCD reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Restrictions: You are not allowed to 1) access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from TCD; 2) circumvent, disable, fraudulently engage with, or otherwise interfere with any part of the Service (or attempt to do any of these things), including security-related features or features that (a) prevent or restrict the copying or other use of Content or (b) limit the use of the Service or Content; 3) access the Service using any automated means (such as robots, botnets or scrapers) except (a) in the case of public search engines (b) with YouTube’s prior written permission; 4) collect or harvest any information that might identify a person, unless permitted by that person; 5) use the Service to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations; 6) use the Service to view or listen to Content other than for personal, non-commercial use; or 7) use the Service to sell any advertising, sponsorships, or promotions placed on, around, or within the Service or Content.
Reservation: Using the Service does not give you ownership of or rights to any aspect of the Service, including profiles or any Content.
Certain Tutor Obligations
As a Tutor, you must provide TCD with any information requested in order for TCD to list your Session through its Services. TCD has sole discretion as to which Sessions we list on the Service and we reserve the right to reject any Sessions or remove Sessions from the Service for any reason. TCD has sole discretion as to which Tutors are accepted into the Service and we reserve the right to reject any potential Tutor and remove or suspend any Tutor from the Service for any reason. TCD may, but is not required to, conduct background checks on and interviews of Tutors in its discretion and solely for its own benefit. As a Tutor, you agree to provide written and/or electronic consent to such background checks and to participate truthfully in such interviews.
Each Tutor is solely responsible for obtaining all licenses and other permissions required to offer or provide any Sessions and TCD assumes no responsibility for a Tutor's failure to obtain such licenses or permissions or otherwise comply with any applicable laws, rules or regulations.
You understand and agree that TCD is not an insurer, agent or employer for you as a Tutor. Notwithstanding the foregoing, TCD is authorized to serve as your limited agent purely for the purpose of accepting payments from Parents on your behalf and transmitting such payments to you (minus our fees). You acknowledge and agree that, as a Tutor, you are responsible for your own acts and omissions while using the Services.
To the extent that you are using the Services as a Tutor, you agree to abide by the terms of our Tutor Guide.
General: Each Parent agrees to pay all applicable fees for Sessions (“Enrollment Fees”) as set forth on the Site. All Enrollment Fees are payable in the currency specified on the Site at the time of purchase. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income. Parent hereby authorizes TCD to bill Parent’s payment instrument upon confirmation of a purchase, and Parent further agrees to pay any charges so incurred. If Parent disputes any charges you must let TCD know within sixty (60) days after the date that TCD charges you.
Tutor Payment: TCD will transfer the Enrollment Fees to Tutor’s account for each sale of a Session (or set of Sessions, as applicable) to a Parent within a reasonable period of time, minus TCD’s service fees (“TCD Fee”), according to the schedule and policies detailed in our Tutor Guide. TCD has discretion to act on behalf of the Parent, and to not transfer the Enrollment Fees to Tutor, if Parent reports that the Sessions were not provided or adequately completed. This may include but is not limited to circumstances where a Tutor did not arrive for a Session or a Session was of insufficient quality. TCD will independently review such cases, seeking input from the Parent and/or the Tutor, and may decide at its sole discretion to issue a refund to the Parent. All determinations of TCD with respect to a refund shall be final and binding on the Parent and Tutor.
Limited Payment Collections Agent: Each Tutor appoints TCD as the Tutor’s limited payment collection agent solely for the purpose of accepting the Enrollment Fees from Parent. Each User agrees that payment of Enrollment Fees by a Parent to TCD, as that Tutor’s limited payment collection agent, shall be considered the same as a payment made directly by such Parent to the relevant Tutor and the Tutor will provide the relevant Sessions to the Parent, as outlined on the Site, as if the Tutor had received payment directly. TCD, as limited payment collection agent for the Tutor, agrees to facilitate the payment of any Enrollment Fees (less the TCD Fee) for Sessions pursuant to these Terms of Service unless otherwise agreed between TCD and the Tutor. In the event that TCD does not remit such amounts, the Tutor will have recourse only against TCD.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by TCD. TCD reserves the right to investigate and take appropriate legal action against anyone who, in TCD’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of TCD, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose TCD or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by TCD, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. For the sake of clarity, you acknowledge and agree that Session Recordings constitute Service Content, not User Content. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by TCD from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of TCD, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by TCD.
The TCD name and logos are trademarks and service marks of TCD (collectively the “TCD Trademarks”). Other TCD, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to TCD. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any TCD Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of TCD Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will TCD be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that TCD may, but is not required to, pre-screen content, and TCD and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, TCD and its designees will have the right to remove any content that violates these Terms of Service or is deemed by TCD, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You shall retain any intellectual property rights that you hold in your User Content, and TCD does not claim any ownership (copyright, trademark, or otherwise) over your User Content. By submitting, posting or otherwise uploading User Content on or through the Services you give TCD a worldwide, nonexclusive, perpetual, irrevocable, fully sub-licensable and transferable, royalty-free right and license as set below:
with respect to User Content that you submit, post or otherwise make publicly or generally available via the Service (e.g. public forum posts), the license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and publicly display such User Content (in whole or part) worldwide via the Services or otherwise, and/or to incorporate it in other works in any form, media, or technology now known or later developed for any legal business purpose; and
with respect to User Content that you submit, post or otherwise transmit privately via the Services (e.g. via private lessons or messages with other Users), the license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and publicly display such User Content for the sole purpose of enabling TCD to provide you with the Services.
You also grant each other users of the Service a worldwide, non-exclusive, royalty-free license to access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Service. This license does not grant any rights or permissions for a user to make use of your Content independent of the Service.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to TCD are non-confidential and TCD will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that TCD may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of TCD, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: TCD respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify TCD of your infringement claim in accordance with the procedure set forth below.
TCD will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to TCD’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: Thinking Cup Digital, LLC. 68 34th Street, Unit 11, Suite B431, Brooklyn, NY 11232.
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Southern District of New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, TCD will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, TCD has adopted a policy of terminating, in appropriate circumstances and at TCD's sole discretion, users who are deemed to be repeat infringers. TCD may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. TCD has no control over such sites and resources and TCD is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that TCD will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that TCD is not liable for any loss or claim that you may have against any such third party.
Third Party Services
In addition, TCD is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with online services. As such, TCD is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such online services. TCD enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold TCD and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TCD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
TCD MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU ACKNOWLEDGE AND AGREE THAT ANY CRIMINAL BACKGROUND CHECKS CONDUCTED BY TCD ON TUTORS ARE SOLELY FOR ITS OWN BENEFIT. TCD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS ON THE SITE OR SERVICE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TCD WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TCD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL TCD’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID TCD IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and TCD, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and TCD are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Session and Representative Actions and Non-Individualized Relief: YOU AND TCD AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TCD AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: TCD is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to TCD should be sent to Thinking Cup Digital, LLC. 68 34th Street, Unit 11, Suite B431, Brooklyn, NY 11232 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If TCD and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or TCD may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by TCD or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or TCD is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org/. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless TCD and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, TCD agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, TCD will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, TCD will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, TCD will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Session and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Session and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in this Terms of Service to the contrary, TCD agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending TCD written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that TCD, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if TCD believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. TCD may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that TCD may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that TCD will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and TCD will have no liability or responsibility with respect thereto.
TCD reserves the right, but has no obligation, to become involved in any way it deems necessary with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and TCD and govern your use of the Service, superseding any prior agreements between you and TCD with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and TCD agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of TCD to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of TCD, but TCD may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Thinking Cup Digital, LLC. 68 34th Street, Unit 11, Suite B431, Brooklyn, NY 11232.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.