Terms and Conditions
Terms and Conditions
Last updated on January 22, 2024
Welcome to THINKED CORPORATION, (“ThinkEd”) a Delaware Corporation and subsidiary of MGD Heroes Made, Ltd., (“Heroes Made”), a Cyprus corporation, (collectively, the “Company”, “We”, “Our”, “Us”), a direct, social-emotional learning platform, providing a social-emotional educational curriculum, and offered through the Company’s website at https://www.thinked.tech/ (“Website” or “Platform” used interchangeably). These terms and conditions constitute a legally binding agreement (this “Agreement”) between You and the Company governing Your use of the Company’s Website. By entering this Agreement, You expressly agree and acknowledge that You understand this Agreement. By accessing or using the Platform, or by clicking a button or checking a box marked “I Agree” (or something similar), You signify that You have read, understood and agree to be bound by this Agreement, and to the collection and use of Your information as set forth in Our Privacy Policy, whether or not You are a registered user of Our Platform. Company reserves the right to modify this Agreement so long as it provides notice of these changes to You as described below. This Agreement applies to all visitors, users, students, teachers, schools, educational institutions, their authorized representatives (each an “Educational Institution” and collectively referred to herein as, “Educational Institutions”), and others who access or otherwise use the Platform (“You” or “Users”). If You create an account on behalf of an Educational Institution, company, organization, or other entity, then “You” includes you and that entity.
Subject to the terms set forth in this Agreement, the Company grants You a limited, non-exclusive, revocable, non-transferable and non-sublicensable license solely in connection with Your permitted use of and access to the Platform and solely for Your own personal and non-commercial purposes. The Company reserves the right to revoke, terminate, or otherwise suspend this license at any time and for any reason.
The disclaimers, terms, and conditions contained in this Agreement may be supplemented by a Service Agreement and/or by additional policies, procedures, disclaimers, guidelines, rules, terms or conditions.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. The Platform
The Platform enables Users to learn, practice, or administer social-emotional learning by providing a personalized and expansive curriculum with pre- and post-lesson questions, class or individual activities, metacognition questions and activities, and data-driven assessments. For schools, Our Platform boosts prosocial behavior in students, elevates attitudes and reduces stress to transform Educational Institution climates. For teachers, it provides an opportunity to focus on connecting with students rather than class preparation, elevates the classroom climate, and provides immersive SEL and built-in assessments. Finally, through the use of Our Platform, students are empowered with self-awareness, self-management, social skills, and responsible decision-making. Our Platform is more than a tool, it is an extension of Our collective belief that emotional well-being is essential. Our commitment isn’t just imaginative; it is responsibly actionable.
2. Authority
If You are under the age of eighteen (18), You may use the Platform only with involvement and consent of a parent, legal guardian, or at the direction of Your school or Educational Institution. Your school or Educational Institution may impose additional policies regarding the use of the Platform, with which You must comply.
If You create an account to provide the Platform to students, through a school or Educational Institution, You represent and warrant that You are an authorized representative of the school or Educational Institution with the authority to bind the Educational Institution to this Agreement, and that You agree to this Agreement on the Educational Institution’s behalf. If You contact Us to take any action with respect to an account, You represent and warrant that You have all necessary authority to request such action(s) from or on behalf of the account-holder (e.g., a Educational Institution or parent).
The U.S. Children’s Online Privacy and Protection Act (“COPPA”) requires that online service providers obtain verifiable parental consent before collecting personal information from children under 13. If You are an Educational Institution providing the Platform to children under 13, You represent and warrant that You have the authority to provide consent on behalf of parents for the Company to collect information from students under 13 before allowing such students to access Our Platform. We recommend that all Educational Institutions provide appropriate disclosures to students and parents regarding their use of service providers such as Heroes Made and ThinkEd, and that Educational Institutions provide a copy of Our Privacy Policy to parents. Further, Educational Institutions must obtain all necessary consents from parents or legal guardians in accordance with the service agreement (‘Service Agreement”), which is fully incorporated herein by reference, and with all applicable laws.
3. No Guaranties
The assessments provided by the Company are designed for informational and educational purposes only. They are not intended to replace professional advice or serve as a substitute for consultations with qualified experts in relevant fields. The results of the assessments should not be considered definitive conclusions or diagnoses.
We do not warrant or guarantee the accuracy, completeness, or reliability of the assessments’ results. The assessments are based on general information and assumptions and may not take into account specific individual circumstances, medical conditions, or other factors.
Any action taken based on the results of the assessments is at Your own risk. Heroes Made, ThinkEd, and its affiliates, partners, employees, or agents shall not be held liable for any direct, indirect, incidental, special, consequential, or other damages arising from the use of or reliance on the assessments, including but not limited to errors, omissions, or inaccuracies in the results.
Before making any significant decisions or taking actions based on the assessments, it is recommended to consult appropriate professionals, such as medical practitioners, legal experts, financial advisors, or other relevant specialists.
By using the assessments provided by the Company, You acknowledge and agree to these terms. If You do not agree with these terms, please refrain from using the assessments.
4. Payments, Billing, and Membership.
You confirm and agree to use only payment means such as credit cards, debit cards, or any other payment method authorized by Company (each a “Method of Payment” and collectively “Methods of Payment”), which You are duly and fully authorized to use, and that all payment related information provided is accurate and current, and that all future Methods of Payment will be updated accordingly.
You agree to pay all fees and charges associated with this Agreement on a timely basis and according to the fee schedule(s) effective at the time You sign up (hereinafter, the “Fee Schedule”), as published by the Company. By providing Us with Your Method of Payment You authorize Us to bill and charge You through that Method of Payment and You agree to provide valid and current payment information. You agree to timely submit payment as directed and prompted by Company.
Except as required by law, all fees are nonrefundable. You may not cancel payments and purchases, except as required by law. However, Company reserves the right to refuse or terminate any purchase or attempted purchase at any time in its sole discretion.
Automatic Renewals. The termination of the subscription service is governed by the specific contract terms agreed upon by each Educational Institution. To prevent any interruptions in service, Educational Institutions are advised to notify Company at least two (2) months prior to the expiration of their then-current subscription term, if they wish to renew or continue their subscription. Our dedicated team will proactively conduct follow-ups to ensure that each Educational Institution is adequately informed about the impending expiration of their subscription and the necessary steps for renewal, if desired. This process is part of Our commitment to providing seamless and uninterrupted service to all Educational Institutions.
Price Changes. We reserve the right to adjust the pricing for use of and access to Our Platform including but not limited to membership subscription plans, in any manner and at any time as we may determine in Our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes will take effect following posting or other notice to You.
5. User Representations and Warranties
Student. You hereby represent and warrant to Company that You have reached the age of majority in the jurisdiction in which You reside or are otherwise an emancipated minor, possess legal consent from a parent or guardian, or otherwise have the authority and requisite capacity to access and use and perform Your obligations under this Agreement.
Educational Institutions. Minor Consent. Where consent from a parent or guardian is required, the Educational Institution or its authorized representative hereby confirms that it has obtained the requisite consents from the parents or guardians of minor children who have the sole right to consent to the Platform and that the Educational Institution or its authorized representatives are not legally mandated to confer with or get consent from any other legal guardian before consenting. The Educational Institution or its authorized representative also gives affirmative consent to the provisions set forth in the accompanying Privacy Policy regarding the collection, processing, and use of personal information on behalf of the minor.
You hereby confirm and agree that all the information that You provide is true, accurate, current, and complete information about Yourself.
If You provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company reserves the right to take steps as appropriate to rectify such situations, including, but not limited to, suspension or termination of this Agreement and Your access to the Platform.
You agree and consent to not interfere with or disrupt, or attempt to interfere with or disrupt, any of Our systems, Website, servers, networks or infrastructure, or any of the Website’s systems, services, servers, networks or infrastructure, including without limitation obtaining unauthorized access to any of the parts of the Website which are inaccessible and not permitted for Your use.
You agree and consent to not make any use of the Website for the posting, sending or delivering of either of the following: a message or information under a false name; information that is unlawful, libelous, defamatory, abusive, vulgar, obscene, racist, fraudulent, predatory of minors, harassing, threatening or hateful to any person; unsolicited email and/or advertisement or promotion of goods and services; any content that may cause damage to a third party; any content which may constitute, cause, or encourage a criminal action or violate any applicable law; and information that infringes or violates any of the intellectual property rights of others or the privacy or publicity rights of others.
You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of the Platform, use of the Platform, or access to the Platform.
Given the global reach of the Internet, You agree to comply with and are solely responsible for ensuring compliance with all local laws, regulations, and rules in the jurisdiction(s) in which You reside. You agree to comply with all applicable laws regarding the transmission of data exported from the United States or the jurisdiction(s) in which You reside.
You agree and consent to not violate any applicable local, state, national or international law, statute, ordinance, rule, regulation or ethical code in relation to this Agreement, and Your use of the Website and access to the Platform.
If You receive any file from Us whether through the Website, other means of communication, or otherwise, You agree to diligently check and scan this file for any virus or malicious software prior to opening or using this file. You understand and acknowledge that Company shall not be liable for any damages caused by virtue of or in connection with any virus or malicious software and hereby release Company from all causes of action and claims of any nature resulting from or arising in connection thereto.
6. Privacy and Security
Safeguarding the information You provide is a high priority. Additional information about Our security and privacy practices can be found on Our Privacy Policy, which is incorporated herein by reference (the “Privacy Policy”) and is available on Our Website. The Company reserves the right to change the Privacy Policy as set forth therein. You acknowledge that You have read and understand the Privacy Policy and that You have the obligation to periodically review the Privacy Policy from time to time.
By agreeing to Our terms and utilizing the Platform, You agree and consent to this Agreement, the Privacy Policy, and You acknowledge that We handle the information You provide Us in accordance with said Privacy Policy. The Company may disclose information to trusted affiliates, independent contractors, and partners, who may use the information for certain business purposes aligned with Company’s goals and business objectives. In addition, the Company may transfer information collected from You in connection with a sale, assignment, merger, or restructuring of the Company.
We may work with a third-party platform which offers a secure private data exchange in the education sector, such as Global Grid for Learning, a public benefit corporation (“GG4L”). GG4L’s data exchange platform offers a shield for personally identifiable information (“PII”). By its own terms, it aims to protect the PII of students, educators, and staff in K-12 educational institutions by offering data encryption, role-based access control, and audit logs to ensure the secure handling of sensitive information. We have integrated GG4L into Our Platform.
7. Third-Party Content
The Platform may expose You to content, websites, products and services created or provided by parties other than the Company (“Third-Party Content”). The Company does not review, endorse, or assume any responsibility for Third-Party Content and shall have no liability to You for access to or use of Third-Party Content. You access or use Third-Party Content is at Your own risk and discretion, and You understand that this Agreement and Privacy Policy do not apply to that Third-Party Content.
8. Disclaimer of Warranty and Limitation of Liability
To the maximum extent permitted by law, You hereby release Us and agree to hold Us harmless from any and all causes of action and claims of any nature resulting from or arising in connection with the Website and Platform, including (without limitation) any act, omission, opinion, response, advice, suggestion, information, or any other content or information accessible through the Website.
You understand, agree and acknowledge that the Website, Platform and API, if any, are provided “as is”, and “as available” without any express or implied warranties of any kind, including but not limited to merchantability, non-infringement, security, fitness for a particular purpose or accuracy, conditions, or duties. The use of and access to the Platform is at Your own risk. To the fullest extent of the law, We expressly disclaim all warranties of any kind, whether expressed or implied.
You understand, agree and acknowledge that We shall not be liable to You or to any third party for any indirect, incidental, consequential, special, punitive or exemplary damages for any reason, whatsoever.
You understand, agree and acknowledge that Our aggregate liability for damages arising with respect to this Agreement and any and all use of the Platform will not exceed the total amount of money paid by You or on Your behalf through the Website in the 12-month period prior to the date of the claim.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You.
This section shall survive the termination or expiration of this Agreement.
9. Indemnification
Subject to the terms as set forth herein, You agree to indemnify, hold harmless, and defend the Company, and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, arising out of or in any way connected to the following: Your access to or use of the Platform; Your violation of any of the provisions of this Agreement; non-payment for access to and use of the Platform; Your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right. This section shall survive expiration or termination of this Agreement.
10. Modifications, Termination, Interruption and Disruptions to the Website
You understand, agree and acknowledge that We may modify, suspend, disrupt or discontinue in Our sole and absolute discretion the Website, any part of the Website, the use of the Website, or access to the Platform to You or altogether, at any time with or without notice to You. You agree and acknowledge that We will not be liable for any of the aforementioned actions or for any losses or damages that are caused by any of the aforementioned actions.
The Platform is dependent on a variety of technological factors. You acknowledge and agree that while We make reasonable and necessary efforts to ensure the Website’s dependability, We cannot guarantee that access will be uninterrupted or that the Website will always be accessible, consistent, timely, or error-free.
11. Third-Party API
By using the Website, You agree that We may use a third-party application programming interface company (“API”) with which the Company’s server will interact and communicate. The services provided by the API are incorporated without limitation. By utilizing and accessing the Website, You consent and agree to be bound by, to the extent applicable, the API provider’s terms and conditions of service to the extent the same are not in conflict with this Agreement.
12. Proprietary Rights and License
The Company, its affiliates, and licensors, if any, exclusively own all right, title and interest in and to the Website and Platform, including all associated intellectual property rights (hereinafter, the “Brand Features”). You acknowledge that the Website, Platform, and Brand Features are protected by the laws of the United States and any applicable jurisdictions. You agree not to remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notice, notice which demonstrates the Company’s ownership of proprietary information, incorporated in or accompanying the Website. Neither these terms nor Your use of the Platform transfers any right, title or interest in the Platform or Company, or intellectual property rights to You, and the Company and its third-party licensors, if any, retain all respective rights, title, and interest to the Platform and the Brand Features.
13. Governing Law and Venue
These terms are governed by and construed in accordance with and enforced under the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
Any legal suit, action, or proceeding arising out of or relating to this Agreement, or the transactions contemplated thereby may be instituted in any United States federal court or state court located in the state of New York in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. You irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. In the event You commence an action against the Company and the Company is the prevailing party, You hereby agree and consent to pay the Company’s reasonable attorneys’ fees, resulting from defense of that action.
14. Binding Arbitration
You and the Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform, the Privacy Policy, or any other agreement with Company, (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, You will also have the right to litigate any other Dispute if You provide the Company with written notice of Your desire to do so by email at info@heroesmade.com within thirty (30) days following the date You first accept these terms (such notice, an “Arbitration Opt-out Notice”) and the Company agrees. If You do not provide the Company with an Arbitration Opt-out Notice within the thirty (30) day period, You will be deemed to have knowingly and intentionally waived Your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if You timely provide the Company with an Arbitration Opt-out Notice, will be the state and federal courts located in the state of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless You timely provide the Company with an Arbitration Opt-out Notice, You acknowledge and agree that You and the Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and the Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. Except as provided in the preceding sentence, this “Binding Arbitration” section will survive any termination of these terms. You agree that any claim You may have arising out of, or related to Your use of Our Website must be filed within one (1) year after such claim arose; otherwise, Your claim is permanently barred.
Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Binding Arbitration” section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless You and the Company otherwise agree, the arbitration will be conducted in New York County. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that You and the Company submit to the arbitrator, unless You request a hearing, or the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The Company will be entitled to recover attorneys’ fees and expenses if it prevails in arbitration.
Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
1. Mobile & Device Security
Most communication with the Company occurs through Your mobile device, computer, laptop, tablet, or other similar device (“Devices”). Therefore, Your Devices likely contain PII, such as your legal name, telephone number, address, social security number, and other vulnerable and sensitive information. As a result, it is of the utmost importance that You keep Your Devices secure at all times. If You are using public Wi-Fi or email applications on Your Devices, You are likely using unsecure networks, putting PII at risk of interception. The best ways to protect Devices from security breaches is to maintain password protection, 2-Factor Authentication, encryption, and/or to install a remote wiping/disabling program into them. Remote wiping/disabling program allows You to quickly clear and disable a lost or stolen mobile device, which can possibly prevent or reduce the magnitude of the breach. While the Company takes the utmost care in protecting Your confidential information and PII, it cannot protect information stored in Your Devices. By using and accessing the Platform, You agree to indemnify and hold the Company harmless for all loss, damage, claims, or legal actions resulting from any data breaches occurring from theft/misplacement or any third-party intervention with any and all of Your Devices.
2. Account Password and Security
You will have a password and account designation upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under Your password or account. You agree to (i) immediately notify Us of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you properly logout of Your account at the end of each session. We cannot and will not be liable for any unauthorized access to Your account or data that arises from Your acts or omissions. Your accounts may not be shared by more than one person or organization unless express authorization is given by Us.
3. Miscellaneous
Entire Agreement. Unless and until otherwise advised by the Company, this constitutes the entire Agreement between You and the Company and incorporates by reference, the Privacy Policy. You affirm that You have not depended or relied upon any representations or promises made by Us except for those set forth in this Agreement.
Our Exclusive Right to Modify. Company may change or update this Agreement by posting modifications on the Website. Unless otherwise specified by Us, all modifications shall be effective upon posting. You are encouraged to check these Terms and Conditions, as may be amended from time to time, frequently. The last effective date of this Agreement is posted at the top of this Agreement. By using the Platform after the changes become effective, You agree to be bound by any such changes. If You do not agree to the changes, You must terminate Your use and participation.
Assignment, Transfer, and Delegation. Company may freely transfer or assign these terms or any of its obligations hereunder at its sole and absolute discretion. Absolutely no assignment, transfer, or delegation of this Agreement, its terms, or the obligations set forth hereunder, shall be permitted by You or any other party.
Notice. Any and all notices demands, requests, elections or other communications required or permitted to be given by either party to the other shall be in writing, or by electronic transmission and shall be either personally delivered, electronically conveyed or deposited in the United States mail, first-class registered or certified postage prepaid, return receipt requested, and addressed to the following:
Heroes Made, LTD. by ThinkEd Corporation
6139 Leesburg Pike
Falls Church, Virginia, 22041-2134
USA Tel: 302-520-2338
EU Tel: 357-99-712285
with a copy to:
KI Legal
Attn: Michael Iakovou, Esq.
40 Wall Street, 49th Floor
New York, New York 10005
Severability. If any provision of these terms is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the remaining provisions of these terms will remain in full force and effect.
For the avoidance of doubt, all clauses regarding limitations of liabilities and indemnification shall survive the termination or expiration of this Agreement.
Last updated on January 22, 2024