Terms and Conditions

Thinkspace Terms & Conditions of Service

Please read the terms of this Agreement, carefully before registering to use the Services offered on this website operated by Typethink LLC trading as Thinkspace LLC, a company and registered in Oregon at 10117 SE Sunnyside Rd, Ste F #521, Clackamas, OR 97015, USA, company number, EIN is 20-8485183.

By completing an Order Form to order any Services you agree to be legally bound by these Terms and Conditions, DPA and Privacy Policy as they may be modified and posted on our website from time to time.

In the event of any inconsistency between the content of the Terms and Conditions, DPA and the Privacy Policy, the Terms and Conditions shall prevail followed by the DPA and then the Privacy Policy.

If you do not wish to be bound by these Terms and Conditions, DPA and Privacy Policy then you may not register to use, or purchase any of the Services.

I. Definitions

In this Agreement, the following capitalised words shall have the meanings set out below:

“Agreement”	means these Terms and Conditions, DPA, Privacy Policy and each Order Form together and all documents referred to in them.
“DPA”	means Our data processing agreement as amended from time to time.
“End-Users”	means any individuals and/or consumers who use Your website to engage with You.
“Fees”	means the fees set out in the Order Form.
“Force Majeure”	means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where We cease to be entitled to access the Internet for whatever reason, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
"Intellectual Property Rights"	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world.
“Ongoing Services”	means the ongoing software applications, technology and Services You subscribe to as set out in the Order Form and made available to You during the Term, including any computer software programmes, Thinkspace Technology license, access to future technology updates, website hosting, data management, phone and email support and marketing services.
"Order Form"	means the ordering document(s) in tangible or digital form for purchase of a subscription licence to any of the Services, including amendments thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference and may be executed digitally with eSignatures.
“Our Content”	means any information or material provided by Us for use in Your Website Project, OM Services and/or Thinkspace Cloud, including but not limited to audio and visual information, designs, documents, product data, product images, logos, brand marketing collateral, customer account records when accessing or using the Services.
“Privacy Policy”	means Our privacy policy as amended from time to time.
“Services”	means any or all of the services which We provide to the jewelry industry, including, but not limited to, Thinkspace Cloud Services to manage and share Your product data and brand collateral with authorized parties, Thinkspace Website Services for Your Website Project, Thinkspace Online Marketing Services (“OM Services”), and Ongoing Services, as set out in the Order Form.
“Statistical Data”	means aggregated, anonymised data derived from Your, User’s or End-User’s use of the Services which does not include any personal data or Your Confidential Information.
“Supplier Content”	refers specifically to any information or material provided by a jewelry manufacturer/supplier to Thinkspace Cloud, either directly or indirectly, including but not limited to product data, product images, product videos, logos, brand marketing collateral, price lists and any other related information or documents.
“Term”	means the duration of this Agreement.
“Terms and Conditions”	means these terms and conditions as amended from time to time.
"Thinkspace Technology"	or “Our Technology” means all of Thinkspace’s Intellectual Property Rights, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, aggregated and normalized data sets, internet marketing strategies, and other tangible or intangible technical material or information) made available to You in providing any Services.
"Users"	means individuals who are authorized by You to use the Services, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“Website Project”	means the website that we create and host for you as set forth in any Order Form and which includes any combination of Your Content and Our Content.
"We,"	"Us" or "Our" means Typethink LLC, trading as Thinkspace.
"You"	or "Your" means the company or other legal entity named in the Order Form who enters into and is legally bound by the provisions of this Agreement, and Affiliates of that company or entity. You refers to both You as a retailer jeweller subscribing to Our Website Services and/or Our OM Services, and/or You as a jewelry manufacturer/supplier managing Your Supplier Content in Thinkspace Cloud.
"Your Content"	means any information or material provided by You for use in Your Website Project, OM Services and/or Thinkspace Cloud, including but not limited to audio and visual information, designs, documents, product data, product images, logos, brand marketing collateral, customer account records in the course of using the Services. Your Content also includes any customer information gathered by Your website during the course of using the Ongoing Services.

II. Intellectual Property

A. Services.

You engage Us and We agree to provide the Services set out in each Order Form in accordance with the terms of this Agreement.

B. Our IPRs and License Grant.

All ownership, right title and interest in and to the Thinkspace Technology and Our Content remains with Us and/or Our licensors and subcontractors. No interest or ownership in the Thinkspace Technology or Our Content, our Intellectual Property Rights or otherwise is transferred to you under this Agreement.

Unless otherwise agreed, at the time Your Website Project is made live on the internet, We grant You a non-exclusive, non-transferrable, irrevocable, perpetual, royalty free, and fully paid-up license to use any of Our Content created for and/or used in Your Website Project. From this date, We also grant You a non-exclusive, non-transferable license to use the Ongoing Services set out in the Order Form for the term of the Order Form in accordance with the terms of this Agreement. Such licence shall permit You to make cache copies of software or other information as are required for You to receive the Ongoing Services via the Internet. Where open source software is used as part of the Ongoing Services, such software use will be subject to the terms of the open source licences. No right to modify, adapt, or translate the Ongoing Services or create derivative works from the Ongoing Services is granted to You. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that You have any right to obtain source code for the software comprised within the Ongoing Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Ongoing Services is prohibited.

We build technology that benefits Our community network of clients as part of Our Ongoing Services. As such, unless otherwise agreed to in writing, You hereby assign to Us any and all right, title and interest, including all related Intellectual Property Rights, in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other related information provided by You or any other party relating to any Website Project, Thinkspace Cloud, Internet Marketing and/or Ongoing Services, thereby entitling Us to use this information for and with any of Our clients, to license deliverables to other clients embodying this information, to create derivative works based on this information, and to receive economic benefit from its use.

C. Restrictions.

We may suspend access to the Services, or part thereof, at any time, if in Our sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of You or Users. Where possible, We shall give You 7 days written notice, before suspending access to the Services, giving specific details of Our reasons.

You are not permitted to remove any proprietary marks or copyright notices from the Services.

We may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.

D. Your IPRs and License Grant.

You retain sole ownership of all rights, title and interest in Your Content and Intellectual Property Rights. You have the sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Content and Intellectual Property Rights. You grant us a non-exclusive, licence to use Your Content and Intellectual Property Rights and any third-party owned item for the Term to the extent required for us to provide You with the Services.

You grant us the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting Us from using the Statistical Data for business and/or operating purposes, provided that We do not share with any third-party Statistical Data which reveals the identity of You or Users or Your Confidential Information.

III. Charges and Payment of Fees

A. Fees, Invoicing, Payment & Term.

We will invoice you all Fees for the Services pursuant to the payment schedule described in the Order Form. Unless otherwise agreed, You must pay invoices within 15 days of receipt of all invoice without deduction, withholding or offset.

Set-up fees for all Website Projects, OM Services and Thinkspace Cloud Services are the one-time payment amounts set forth in any Order Form and are non-refundable.

Fees for Ongoing Services for Website Projects are invoiced commencing on the date the website is live on the internet at the subscription rates set forth in the Order Form. These fees are payable monthly in advance on a recurring basis until either party terminated the Ongoing Services by giving, one month written notice. No refunds will be given upon termination.

Fees for Ongoing Services for Online Marketing Services are invoiced at the subscription rates set forth in the Order Form. These fees are payable monthly in advance on a recurring basis until either party gives one months written notice. Notice to terminate Ongoing Services is only effective after expiry of the first 6 months of the term for the provision of the Ongoing Services. No refunds will be given upon termination.

Thinkspace Cloud Services commence when Your account is activated, and You agree to the terms of this Agreement. You may cancel Thinkspace Cloud Services at any time by instructing Us to permanently remove Your Supplier Content from the websites of Your authorized Thinkspace retailers, and from Thinkspace Cloud.

You must provide Us with a valid credit card, debit card, or bank account information for paying invoices associated with all Services or make other arrangements for another acceptable form of payment. Your payment information must be kept current by communicating with Our billing department at billing@thinkspacehq.com.

You agree and acknowledge that We are hereby authorized to charge Your credit card account or other payment mechanism for any amounts owed by You to Us. During the Term of this Agreement, We have sole discretion to waive this requirement. You undertake that all details provided for the purpose of obtaining the Services will be correct and that the credit card details used are Your own and that there are sufficient funds or credit facilities to cover the Fees.

B. Fee Increases.

The monthly pricing during any renewal term for any Ongoing Services shall be the same as that during the prior term unless We have given You written notice of a price increase at least 90 days before the end of such prior term, in which case the price increase shall be effective upon renewal and thereafter. Any such price increase shall not exceed 10% over the pricing for the same Ongoing Services in the immediately prior subscription term and shall be in effect for at least 1 year without further increase.

C. Taxes.

You will pay or reimburse Us for all required duties, taxes, fees or other similar amounts assessed or imposed by governmental authorities. You are responsible for paying all value added tax, sales tax or withholding taxes for all transactions on Your website, and for collecting and paying such taxes. Our Technology gives You the ability to define sales tax rates by city, state and/or zip code.

D. Overdue Amounts.

Amounts not paid when due are subject to a late payment fee equal to 10% of the unpaid invoice amount plus finance charges equal to 1.5% per month or the highest rate permitted by law, whichever is less, compounded daily from the due date until paid. Payment of the late payment fee or finance charges does not excuse or cure late payment. Payments received are first applied to the late payment fee; then to finance charges and only then to invoice amounts. You agree to reimburse Us for all reasonable costs We incur for collection of any past-due amounts, including court costs and reasonable legal fees. If it is determined that a payment is overdue, We may suspend any work in progress, any license grant or any Services provided under this Agreement until the overdue Fees are paid.

E. Disputed Amounts.

If you believe any invoice is incorrect, you must contact us in writing within 30 days of the invoice date setting out your queries about the invoice to be eligible to receive an adjustment or credit.

IV. Termination

A. Termination for Cause.

If a party fails to cure a Material Breach (as defined below) within thirty (30) days after being requested in writing to do so by the non-breaching party, the non-defaulting party may immediately terminate any Website Project or Ongoing Services to which the Material Breach relates. In the event of Your Material Breach We may block all Internet access to Your website. Notwithstanding the foregoing, in the event there is a genuine dispute over an alleged Material Breach by You, We will not take any action that adversely affects Your business, including blocking internet access, until such good faith dispute is resolved as set forth herein. by You includes, without limitation, the following:

any failure to pay our Fees for the Website Project or Ongoing Services when due,
any failure to cooperate with Us to complete the Website Project in a timely manner, or
hindering Our ability to perform Our Services through Your action or inaction.

Either party shall be entitled to terminate this Agreement on written notice to the other party if the other party:

1. goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or

2. is prevented by Force Majeure from fulfilling its obligations for more than twenty eight (28) days.

B. Refund or Payment upon Termination.

Upon any termination for cause by You, We shall refund You any prepaid Fees covering the remainder of the term of all Ongoing Services after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid Fees until the effective date of termination. In no event shall any termination relieve You of the obligation to pay any Fees payable to Us for the period prior to the effective date of termination.

C. Return or Deletion of Your Content.

If on termination, You would like Us to send Your Content, including Your product data or You would like us to delete your Content, then You must make a written request to Us within 30 days after the effective date of termination of the Services. After such 30-day period, We shall have no obligation to maintain or return Your Content.

D. Surviving Provisions.

Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. The following sections of this Agreement and any sections which by their nature should survive expiry or termination of this Agreement, shall survive any termination or expiration of this Agreement:

Section III – Charges and Payment of Fees
Section IV (B) - Refund or Payment upon Termination
Section IV (C) - Return or Deletion of Your Content
Section V (C) - Warranties & Restrictions
Section V (I) - Mutual Indemnification
Section V (J) - Limitation of Liability
Section VI - Confidentiality
Section IX (E) - Export Prohibition
Section X - General Provisions

V. Representations and Warranties

A. Representations.

Each Party represents and warrants that:

it has the legal power and authority to enter into this Agreement and perform the obligations required hereunder;
the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and
it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.

You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to Our Services and that your invoicing information is correct.

B. Website Project & Technology Warranty.

We warrant that Our Services will function in all material respects consistent with the specifications included in the applicable Order Form, and any materials referenced therein or attached thereto.

C. Warranties & Restrictions.

You warrant that You are the owner or valid licensee of Your Content and each element thereof that You submit to Us in the rendering of Our Services, and that You have secured all necessary licenses, consents, permissions, waivers and releases for the use of Your Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Us to pay any fees, residuals, or other payment of any kind to any person. You also warrant that the use, publication and display of Your Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated.

You agree and further warrant that You shall not copy, reproduce, re-manufacture re-distribute or in any way duplicate all or any part of Our Content shared with You, electronically or in any other medium, whether modified or translated into any other format or not, and that You will protect Our Content and use it only in Your website during period of Ongoing Services in accordance with the terms of this Agreement.

You agree and further warrant that You shall not re-sell or otherwise re-distribute Our Content to any third-party or use Our Content within any commercial product without Our express written consent.

You specifically agree and warrant never to allow any access whatsoever to the administration section of Our Technology other than by Your authorized employees bound to a written confidentiality undertaking consistent with the Section VI of this Agreement, except with Our prior written consent. You may not access Our Technology or use the Services for purposes of monitoring Our platform’s availability, performance or functionality, or for any other benchmarking or competitive purposes. Likewise you agree and warrant not to disassemble, reverse engineer or decompile any portion of any of Our Technology provided or licensed to You nor shall You otherwise attempt to discover any portion of Our source code or trade secrets related to any of the Services, either alone or in collusion with others.

You agree that in the event You breach these warranties, it will actually and materially harm and/or prejudice Our business interests, and You will be liable for damages and/or injunctive relief as may be determined by a court of competent jurisdiction.

D. Ongoing Services Warranty.

During the applicable Term (the “Warranty Period” for Ongoing Services), We warrant that We will provide the Services in a manner consistent with general industry standards in accordance with this Agreement, the Order Form and otherwise as described in the online Thinkspace “HELP” documentation, under normal use and circumstances.

E. No Thinkspace Cloud Warranty.

Thinkspace Cloud is a central data repository for jewelry suppliers to store, share and manage Supplier Content with authorized parties. We undertake an arduous process of checking, cleaning, normalizing, and improving much of the data provided to Us for use in Thinkspace Cloud. However, We do not and cannot ensure, guarantee or warrant the quality or pricing of any products within Thinkspace Cloud. You understand and acknowledge that You are solely responsible for verifying the data quality, pricing, availability of all data that you add into Thinkspace Cloud or use on Your website. Since many vendors supply product data at wholesale cost, We may use a default markup to prevent pricing errors on Your website. We encourage You to contact Your vendors and ask them to verify the prices, availability and delivery times for all products in Thinkspace Cloud and on Your website. You agree and acknowledge that We shall have no liability or responsibility for any Supplier Content related issue including, but not limited to, any issue related to missing information, wrong information, false information, inaccurate or misleading information, improperly shared information, and lost information in connection with Thinkspace Cloud and/or Your website.

F. Exclusions.

We do not warrant the following:

that any website or Ongoing Services are free from all bugs, errors or omissions; that they will be secure, timely, uninterrupted, or error-free; or that they will meet your ongoing requirements or expectations;
that any stored data will be accurate or reliable;
that the quality of any products, services, information or other material purchased or obtained by You through the Services will meet your requirements or expectations; although any errors or defects will be corrected as best efforts;
that the Ongoing Services will be free from viruses or other harmful components;
the error free operation or compatibility of any third-party apps or third-party software plugins used with the Services.

Any warranties under this Agreement or the Order Form do not extend to any failure of the Services caused by any modification or change not made by Us; any failure of the Services caused by use of products, goods, services or other items furnished by anyone other than Us; or use of the Services in an operating environment other than as specified by Us.

G. Exclusive Warranties and Remedies.

NOTWITHSTANDING ANY WILFUL OR INTENTIONALLY HARMFUL ACT BY US, THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE IN SUBSTITUTION FOR ALL OTHER WARRANTIES AND REMEDIES. YOU HEREBY WAIVE ALL OTHER RIGHTS AND REMEDIES WITH RESPECT TO ANY NONCOMPLIANCE AND/OR FAILURE OF THE SERVICES FOR ANY WEBSITE, SOFTWARE, ONGOING SERVICES, OR OTHER ITEM OR SERVICE FURNISHED BY OR ON BEHALF OF US UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

H. Failures.

We will use reasonable efforts to correct any failure of any of the Services, as the case may be, to comply with the appropriate foregoing warranty, provided that You give Us prompt written notice of such failure during the applicable Warranty Period and We are able to reproduce the failure in an environment which we support.

If, after the expenditure of reasonable efforts, We are unable to correct the non-compliance or failure in the Services, We will refund the Fees for Ongoing Services (but not any expenses or Third-Party Deliverable fees) for the month in which the notice of failure was given; and should You wish to continue using the Ongoing Services despite the non-compliance or failure, We in Our sole discretion may offer a reasonable reduction in the monthly Fee for the Ongoing Services reflecting the value of the functionality that is not operable. Any refund and/or any reduction in price for the Ongoing Services will be Your sole and exclusive remedy for any failure of any of the Services. You will supply Us with all reasonably requested information to assist Us in reproducing any failure.

I. Mutual Indemnification.

You shall indemnify, defend and hold Us, Our licensors and each such entity’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any claim alleging that:

Your Content and/or Your use of Our Technology has caused harm to a third-party;
You, Users or End-Users have breached Your obligations under the DPA;

provided that in any such case We do the following: (a) give written notice of the claim promptly to you; (b) give You sole control of the defence and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Us of all liability and such settlement does not affect Our business or the Services); (c) provide to You all available information and assistance; and (d) have not compromised or settled such claim.

We shall indemnify, defend and hold You, Your parent organizations, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any claim alleging that:

Our Technology infringes the rights of, or has caused harm to, a third-party; or
We have breached Our obligations under the DPA;

provided in any such case that You do the following: (a) give written notice of the claim promptly to Us; (b) give Us sole control of the defence and settlement of the claim (provided that We may not settle or defend any claim unless We unconditionally release You of all liability and such settlement does not affect Your business); (c) provide to Us all available information and assistance; and (d) have not compromised or settled such claim.

J. Limitation of Liability.

WITH THE EXCEPTION OF PARAGRAPHS V(I) ON INDEMNIFICATION, AND BREACHES OF CONFIDENTIALITY UNDER PARAGRAPH VI, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR OUR SERVICES OR, IN THE CASE OF ONGOING SERVICES, PAID BY YOU TO US IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY OF OUR SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE OR THE ONGOING SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH OUR SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU SHALL BE LIABLE FOR THE ACTS AND OMISSIONS OF YOUR USERS IN BREACH OF THE TERMS OF THIS AGREEMENT AS IF SUCH ACTS AND OMISSIONS WERE CAUSED BY YOU.

WE SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY USE OF THIRD-PARTY APPS OR SOFTWARE PLUGINS USED IN CONNECTION WITH THINKSPACE CLOUD AND/OR YOUR WEBSITE.

K. Export Control.

You agree to abide by the export control laws of the United States including those administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

Your website and the Ongoing Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

VI. Confidentiality and Data Protection

A. Confidentiality.

Both parties may acquire certain information that is confidential, proprietary or trade secret information of the other party or a third-party ("Confidential Information") in conjunction with the use of the Services. Confidential Information shall include, but is not limited to, all administrative pages which have a restricted user access, all administrative functionality which is not apparent from the consumer facing side of Our Technology, the terms and conditions of this Agreement and all Order Forms, as well as information concerning the operation, business and marketing strategy, technology and technical information, product plans and designs, financial affairs, products, website analytics, and business processes disclosed by such party. Other Confidential Information of either party shall be clearly identified in writing as confidential at the time of disclosure or promptly thereafter, unless by virtue of the circumstance of the disclosure or the kind of information disclosed the receiving party knew or should have known of its confidential nature. However, Confidential Information shall not include any information that:

is or becomes generally known to the public without breach of any obligation owed to the disclosing party,
was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party,
is received from a third-party without breach of any obligation owed to the disclosing party, or
was independently developed by the receiving party.

The party receiving Confidential Information will use commercially reasonable efforts to protect such information from any unauthorized use or disclosure. The receiving party shall see that its employees, agents and affiliates having access to Confidential Information are bound by confidentiality obligations consistent with this provision. Upon the termination or expiration of this Agreement or at any other time upon the request of the disclosing party, the receiving party shall, within 30 days, de-install and return or destroy any Confidential Information of the disclosing party and provide written verification that this has been accomplished.

B. Data Protection

Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.

To the extent that personal data is processed when You or Users, use the Services, the parties acknowledge that You are a data processor and We are a data controller and the parties shall comply with their respective obligations under applicable data protection law and the terms of the DPA.

If a third-party alleges infringement of its data protection rights, We shall be entitled to take measures necessary to prevent the infringement of a third-party’s rights from continuing.

Where We collect and process personal data of You or Users, as a data controller, when providing the Services for example when You or a User provides an email address upon registration or when ordering Services, such collection and processing shall be in accordance with the Privacy Policy.

VII. Website Projects

A. Thinkspace Media Library Access.

We grant You a non-transferable, non-exclusive right to use each image obtained from the Thinkspace Media Library only for Your Website Project. All photographs and videos included in the Thinkspace Media Library are protected under the United States and international copyright laws and treaties which provide substantial penalties for infringement. The use of any images or other materials included therein, in whole or part, for any purpose other than on Your Website Project, including, but not limited to, reproduction, storage, manipulation, digital or otherwise, is expressly prohibited without Our written permission. You could face legal action by the copyright holder for any other usage outside of Your Website Project. To inquire about the use of any of these images beyond on Your website, please contact us at support@thinkspacehq.com.

B. Change Requests.

If you desire to change the scope of Your Website Project or the Ongoing Services, you will need to send Us a written request which includes a description and reason for the proposed change as well as any other relevant background information. If We can accommodate the change, We will notify you of any associated increase or reduction in pricing as the case may be, an estimated completion date, potential third-party involvement, and the information and support You will likely need to provide to Us. You will then need to send Us a written authorization to commence the change, at which time We will invoice the work.

C. Third-Party Interactions.

You may ask that a Website Project be designed to permit You or End-Users of Your site to communicate with, purchase goods and/or services from, or otherwise interact with advertisers, sponsors or other third parties, such as payment gateways, point of sale (POS) systems, chat services, analytic services, etc. Likewise, you may ask that the Services permit, enable or facilitate this capability. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between You and the applicable third-party. We shall have no liability, obligation or responsibility for any such communication, purchase, promotion or interaction between Your users, You and any such third-party. We do not endorse any sites on the Internet that are linked through your website or are otherwise enabled by the Ongoing Services. We will provide these links to You only as a matter of convenience, and in no event will We be responsible for any content, products, or other materials on or available from such sites.

D. Terms of Use; Privacy and Security Statements for Websites.

We may direct you to third-party services who can help You create the terms of use, privacy and security statements for Your Website Project. We require You to review the terms of use and privacy and security statements with Your legal counsel, Information Technology professionals and other advisers and confirm back to Us the documents which we should post on Your website.

E. Delays.

To the extent that a delay or failure to perform results from causes beyond the reasonable control of the affected party, that party will be excused and not liable for such delay or failure. If We experience any delays in the delivery of the Services which result from Your failure to meet Your related obligations, where such failure does not result from causes beyond Your reasonable control, You agree to reimburse Us for any reasonable additional costs We incur as a result of such delays, including a project re-activation fee.

F. Publicity and Marketing.

We may include You on Our customer list and/or reference the services We provide to You when asked for references from other potential clients. We may use instances of the website We created for You in Our marketing literature and in selling Our services to other potential clients. However, You are not required to use the “Powered by Thinkspace” designation on Your website. If You do not want this designation, please contact support@thinksapcehq.com.

G. Analytics.

You agree to provide Us unlimited access to Your Google Analytics website account so that We can analyze and track all usage of Our Technology. If You do not have a Google Analytics account you authorize us to set one up on Your behalf so that we may share this information with You. We will treat the information in Your Google Analytics as Confidential according to the terms of Section VI of this Agreement, except that You authorize us to disclose anonymous usage statistics from Your website.

VII. Online Marketing Services

A. Service.

All Thinkspace websites are technically optimized for search engines. We often work with our clients to ensure optimal configuration settings for other related services which affect the website search rankings including Google My Business and the Domain Name Server (DNS). We also offer dedicated OM Services and the associated fees are set forth on the Order Form, and are intended to provide You with increased exposure in search engines (Search Engine Optimization), and to drive targeted online traffic to Your website (Paid Search).

B. Our Responsibilities.

We will use industry standard best practices in the performance of the OM Services. These best practices include (but may not be limited to) the following:

Setup and configuration of Google Analytics, Google AdWords and/or Google My Business.
Conduct market research on relevant local search trends within your service area.

Our Responsibilities for SEO.

Develop a content strategy that's optimal for local businesses. Advise on pages, keywords and meta data.
Setup & configure Google Search Console.
Providing guidance for editing and/or optimization of text for various html tags, meta data, page titles, and page text as necessary.
Analysis and recommendations on optimal website structure, navigation, code, etc. for best SEO purposes.
Recommending, as required, additional web pages or content for the purpose of "catching" keyword/phrase searches.
Creating traffic and ranking reports for Your website and any associated pages showing rankings in the major search engines, along with website traffic analysis.
Offer feedback on usability concerns that may impact accessibility and indexing issues.
Identify and resolve roadblocks that are preventing Your website from performing well on search engines.
Teaching You to take advantage of natural linking opportunities from relevant online sources.
Submitting Your website to all major search engines.

Our Responsibilities for Google AdWords.

Setup & configure Google AdWords for keyword-based ad campaign.
Ongoing Management of Google AdWords campaigns.
Configure account linking with Google Analytics & Google Search Console.

C. Your Responsibilities.

For the purposes of receiving the OM Services, if You have a Thinkspace Website Project then We already have technical access to Your website. If You do not have a Thinkspace website, You agree to provide Us the following:

Administrative/backend access to the website for analysis of content and structure.
Permission to make changes to Your website for the purpose of optimization, and to communicate directly with any third parties, e.g., your marketing director, if necessary.
Unlimited access to existing website traffic statistics for analysis and tracking purposes.
Your website email address for the purposes of requesting links (something like contact@clientsite.com or info@clientsite.com), when requested and necessary.
Authorization to use Your pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as deemed necessary by Us for search engine optimization purposes.
If Your site is lacking in textual content, You will provide additional text content in electronic format for the purpose of creating additional or richer web pages. We can offer copyrighting services at additional cost to You. If You are interested in purchasing copyrighting services from Us, please contact Us for a cost estimate.

D. Your Acknowledgements.

With respect to the OM Services, You agree and acknowledge the following:

We have no control over the policies of search engines or their ranking policies and algorithms. Website inclusion and search engine rank are at the sole discretion of the search engines, as there are inevitably many factors that are simply out of our control.
We do not guarantee number one ad positioning in any search engine results page (SERPs), “top 10 positioning” or placement for any keyword, phrase or search term. You further acknowledge that Our past performance is not indicative of any future results You may experience, that search engines or other resources may block, prevent or otherwise impede Our efforts to provide OM Services to You, and that changes to search engine ranking algorithms may or may not affect the OM Services.
Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO. Should a listing be dropped during the IM campaign and does not reappear within 30 days of campaign completion, We will re-optimize the website/page based on the current policies of the search engine in question.
Linking to "bad neighborhoods" or getting links from "link farms" can seriously damage all SEO efforts. We do not assume liability for Your choice to link to or obtain a link from any particular website without prior consultation. We do not, and will not—even upon Your request—obtain links from "bad neighborhoods.”
We are not responsible for changes made to Your website by You or other parties that You authorize which adversely affect the search engine rankings of Your website.

Additional services not listed herein will be provided at then-current hourly rate for the Services.

IX. Thinkspace Cloud Services

A. Service.

Thinkspace Cloud is a data sharing service for You to upload and manage Supplier Content within the websites of Your authorized retail jewelers within the Thinkspace network.

There are 3 ways for You to upload Supplier Content to Thinkspace Cloud, as follows:

establishing an automated feed or web service to sync Supplier Content from Your inventory system with Thinkspace Cloud,
manually adding/editing Supplier Content directly via Your Thinkspace Cloud user account, and
sending us Supplier Content to upload in bulk on your behalf in which case We will use Our best efforts to process within 30 days of receipt.

B. Supplier Content License.

You grant Us a non-exclusive, revocable license to use Your Supplier Content in Thinkspace Cloud and within the websites of Your authorized retail jewelers within the Thinkspace website network.

We will only share Your Supplier Content with retailers who confirm to Us that they are authorized to have Your Supplier Content on their website. With every retailer share request for Your Supplier Content, We will inform You of the request via email. You can, at any time, deactivate Your Supplier Content on any Thinkspace powered website by any of the following methods:

by logging into to Your Thinkspace Cloud account and deactivating the retailer, or
by notifying Us to do so by emailing support@thinkspacehq.com.

We will also regularly email You a listing of all retailers who have requested Your Supplier Content so that you can easily monitor their access.

C. Acknowledgments.

You understand and agree that Thinkspace retailers have the ultimate say and control of the information that appears on their website. When You consent to sharing Your Supplier Content with Thinkspace retailers, they have control over just about everything including an ability to override Your product descriptions, images and other Supplier Content. You acknowledge and agree that it is Your responsibility to contractually engage directly with Your retailers to ensure they abide by whatever brand standards You choose to impose. After You consent to the sharing of Your Supplier Content with specific retailer websites (either expressly because you logged into Thinkspace Cloud or implied because we sent you an email telling you who had access to Your Content), You acknowledge and agree that We bear no responsibility or liability whatsoever for retailers use of Your Supplier Content. Without this acknowledgement You are not permitted to use Thinkspace Cloud Services.

D. Our Compilation Rights.

Unless otherwise agreed to in writing, We actively work to improve the quality of Your Content including allowing Your authorized Thinkspace retailers to improve Your Content. You further grant Us and Your authorized Thinkspace retailers’ permission to reproduce and modify Your Content for purposes of improving the quality and searchability of the product data within Thinkspace. The resulting (“Compilation”) of information, including all of Your product data, text, graphics, logos, images, and video clips, along with the improvements made by Us and Your authorized Thinkspace retailers, is Our property and is protected by U.S. and international copyrights, and database rights. While We own distribution rights to the Compilation of Your improved product data, You retain any and all underlying copyrights related to Your Content with the full right to remove, restrict and otherwise manage Our use thereof including Our use or non-use of the Compilation. At any time during the Term of this Agreement or thereafter, We will remove and discontinue use of Your Content and Our improved Compilation within 30 days of Your written notice.

F. Export Prohibition.

You may not export or otherwise use or distribute Our Compilation to any third parties without Our express written permission. You specifically agree that You will never distribute our Compilation to any of Our competitors, even after the expiration of this Agreement and your relationship with Us. Our competitors include any company that provides a cloud database and/or website services within the jewelry industry.

X. General

A. Governing Law & Disputes.

Oregon law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, shall govern this Agreement. A three-step process is agreed to resolve disputes. The parties will first attempt through earnest discussion to resolve their differences, including providing notice of the dispute and involving appropriate levels of management of both parties. Failing resolution, the parties will participate in mediation as administered by the American Arbitration Association. Failing resolution through mediation, any dispute will be settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as then in effect, except as provided herein. Any arbitration or mediation will be held in Portland, OR. Arbitration will be before a single arbitrator active in a state bar with experience in online technology and website software licensing in business. The award of the arbitrator will be final and binding, and judgment may be entered in accordance with applicable law in any court having jurisdiction. The arbitrator will award only damages consistent with the damages limitations in this Agreement. No party, witness, or arbitrator may disclose the contents or results of any arbitration hereunder without the prior written consent of all parties, unless, and then only to the extent necessary, required to enforce or challenge the award, as required by law, or as necessary for financial and tax reports and audits. By their very nature, our Services relate to interstate commerce and the enforceability of this arbitration provision shall be governed by the Federal Arbitration Act (FAA), U.S. Code, Title 9.

B. Internet Security.

You acknowledge that the Internet is inherently insecure. We do not warrant that the website created in any Website Project or the Ongoing Services is secure with respect to Internet use. OTHER THAN PROVIDING THE STANDARD ROUTINE MAINTENANCE FOR ONGOING SERVICES, WE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR TO ANY THIRD-PARTY FOR ANY SECURITY RELATED CLAIMS ARISING FROM OR RELATED TO USE OF THE WEBSITE CREATED IN ANY WEBSITE PROJECT OR THE ONGOING SERVICES.

C. PCI Disclaimer.

We choose not to store sensitive credit card information on our servers or in our company records. We specifically disclaim any representation or warranty that the Ongoing Services, as offered, comply with the federal, state, or local laws, rules or standards relating to payment card industry data. Rather, We work with other third-party payment processing service providers such as Authorize.net, PayPal, and others to connect the Thinkspace shopping cart directly with these providers to ensure PCI Compliance in the transmission of data associated with payment processing service providers. The fess associated with these third-party service costs are entirely Your responsibility. As part of the Ongoing Services We will build any needed API connection to Your payment processing service providers at no charge to You.

D. Severability.

No text or information set forth on any other email, purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

E. Independent Contractors.

We are, and shall remain, an independent contractor with respect to services performed pursuant to this Agreement. The Parties are independent contractors and no agency, franchise or other relationship is created hereby. Nothing contained herein shall be construed to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither Party shall have any power to obligate or bind the other party, except as specifically provided herein.

F. No Waiver.

Our failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Us in writing.

G. Assignment; Change in Control.

Neither this Agreement nor any of the Services may be assigned or transferred (e.g., change of control) in any way by You without Our prior written consent. Any consent by Us will require that Your account is current and in good standing. Upon Our consent this Agreement will be fully binding upon, inure to the benefit of and be enforceable by Your successors and assigns. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Your company that results or would result in a direct competitor of Ours directly or indirectly owning or controlling any portion of Your company shall entitle Us to terminate this Agreement for cause immediately upon written notice.

H. Notices

All notices may be given by email. In order for any email notice to be validly given from you to us under the Agreement the email must be sent to: billing@thinkspacehq.com. In order for any email notice to be validly given from us to you under this agreement the email will be sent to the account owners email we have on record.

I. Entire Agreement.

This Agreement and each Order Form sets forth the entire agreement between the parties, and supersedes any and all prior agreements among the parties related to any of the Services. This Agreement in conjunction with the applicable Order Form and its attachments and references forms the complete agreement between the parties, and supersedes any and all prior discussions and agreement (whether written or oral) among the parties related to any Services. No modification of any of the provisions of this Agreement will be valid unless set forth in writing. Writing includes email. All notices may be given by email. In order for any email notice to be validly given under the Agreement the email must be sent to: billing@thinkspacehq.com