Terms and Conditions

This User Agreement (the “Agreement” or “Terms”) is entered into by and between Thankview, LLC (referred to interchangeably as “Thankview”, or the “Company”) and the User. This Agreement governs the User's relationship with, and use of all of the following: (i) the Company’s website, (ii) the Company’s mobile application or content; and (iii) any products and/or services made available by the Company (collectively the “Thankview Platform”). This Agreement is effective as of the date the Client checks the “I Agree” button (“Effective Date”). If you are accepting, you represent and warrant that: (i) you have full legal authority to bind the entity on whose behalf you’re accepting this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If any of the foregoing warranties is untrue, please do not click the "I Agree" button.

1. Services and Support.

1. Services. Subject to these Terms and Conditions (“Terms”), ThankView  will use commercially reasonable efforts to provide an authorized person (“User”) with the ability to send  replies (“Replies”) to video message(s) (“Messages”) sent to User by a third-party (the “Client”) (with the foregoing collectively known as the “Services”), and reasonable customer support services.
2. Site Maintenance. Company Services may be temporarily unavailable because of: (i) scheduled maintenance or for unscheduled emergency maintenance, either of which may be at the instigation or behest of either Company or a third-party provider; (ii) activities, actions, or behavior of the Client; or (iii) other causes beyond Company’s reasonable control.
3. Acceptable Use. Company retains the right to suspend its Services if User’s use is not in compliance with any of these Terms, or the Company’s Privacy Policy (with the latter available on Company’s website at: https://www.thankview.com/privacy).

2. Intellectual Property/Licenses.

1. License; Subject to Intellectual Property Ownership. Except as specifically set forth herein, the Client shall retain all intellectual property rights in the Replies and any information or property therein. Except as licensed herein, this Agreement does not transfer any Company or Client intellectual property rights to the User. For clarification purposes (i) Client retains all right, title and interest in and to any Messages sent by Client and Replies (collectively, Messages and Replies shall be referred to as “User Content”) and all derivative works thereof; and (ii) Company retains all right, title and interest in and to the Thankview Platform and all improvements, additions, expansions, and modifications thereto and all derivative works thereof. Other than as expressly set forth in these Terms, no license or other rights in or to Company’s products, services or intellectual property is granted, and all such licenses and rights are hereby expressly reserved.
2. Suggestions. User may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to Company with respect to the Thankview Platform (collectively, "Suggestions"). Each Suggestion shall not, absent a signed, written agreement with Company, create an obligation for Company to keep any Suggestion confidential. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the parties, Company shall be free to use, disclose, reproduce, commercialize, protect, own, license or in any way distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind to any party, including, but not limited to on account of intellectual property rights.

3. Confidentiality; Proprietary Rights.

1. Proprietary Information. User understands that Company has disclosed or may disclose Proprietary Information. Proprietary Information is defined as “information the Company divulges to User related to Company’s business, products and potential products, processes, or technology including, without limitation, trade secrets, ideas, processes, methods, data, research, know-how, technology, discoveries, development, designs, inventions, formulas, techniques, marketing plans, forecasts, new product and service information, unpublished financial statements and other financial information, budgets, business plans, projections, prices, costs, any and all information regarding suppliers, customers and prospective customers, sales and marketing information, and all other proprietary and confidential information of the Company and/or its business that is disclosed by Company pursuant to these Terms, and any other information which, under the circumstances would appear to a reasonable person to be confidential or proprietary, whether disclosed in writing, orally or otherwise, regardless of whether such information is identified as ‘Confidential’”. Proprietary Information of Company also includes non-public information regarding features, functionality, and performance of the Service. The User agrees to: (i) take reasonable precautions to protect such Proprietary Information, and agrees to take at least those precautions it takes to protect its own Proprietary Information; (ii) not use the Proprietary Information in any way that is not in accordance with or in furtherance of these Terms or the Privacy Policy (available on Company’s website at: https://www.thankview.com/privacy); and (iii) not to divulge to any third party any such Proprietary Information. In addition to the foregoing, User agrees not to use Company’s Proprietary Information in any way not directly in furtherance of User’s use of ThankView’s Services. Proprietary Information shall no longer be considered Proprietary after three (3) years following the disclosure thereof by Company, nor shall any information be considered Proprietary Information that the User can document that: (a) is or becomes generally available to the public by no act of the User; (b) was in its possession or known by it prior to receipt from the Company; (c) was rightfully disclosed to it by a third party and such third-party had no obligation of confidentiality to Company; (d) was independently developed by User without use of any Proprietary Information of the Company’s; or (e) is required to be disclosed by law.
2. User Data. Unless otherwise provided for in these Terms, Client shall own all right, title, and interest in and to the User Data (“User Data” defined as “any and all data and information provided by User to Client in the course of using the Services and/or the Thankview Platform”). Company shall have the right to collect and analyze User Data and other information relating to the provision, use, maintenance, improvement, modification, and performance of the Thankview Platform and related systems and technologies (including, without limitation, information concerning User Data and data derived therefrom, with all of the aforementioned information, including User Data to be known collectively as “Service Data”), and Company will be free, during and perpetually after the term hereof to: (i) use such Service Data to improve and enhance the Thankview Platform and for other development, diagnostic and corrective purposes in connection with the Thankview Platform and other Company offerings; and (ii) disclose such Service Data to any third-party for any reason provided that it does so in a way that Service Data is disclosed in a de-identified form. Unless explicitly provided for in these Terms, Company shall in no way be responsible and disclaims liability for Client’s use of any User Data outside of the ThankView Services and the ThankView platform. In the event that User has any problems, concerns or complaints of any kind regarding Client’s use of User Data, User must discuss and resolve these directly with the Client. By using the Thankview Platform and Services, User explicitly consents to the foregoing.
3. Remedies. If the User discloses or uses (or threatens to disclose or use) any Proprietary Information in breach of these Terms, the Company shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that remedies available aside from injunction may be inadequate to properly protect the Disclosing Party’s interests.

4. Client Representations and Warranties; Company Disclaimer.

1. User Representations and Warranties. User represents and warrants that all of the following are true:
   1. User’s use of the Thankview Platform shall comply with: (i) all applicable laws and regulations; and (ii) the Company’s published Terms and Conditions (where applicable), and Privacy Policy as either may be then in effect and updated from time to time (collectively the “Terms and Policies”).
   2. User may not use the ThankView Platform to send: (A) spam messages; (B) messages offering to sell, purchase, or distribute illegal goods or services; (C) pornographic or sexually explicit material; or (D) malware or other material that User knows, should know, or has reasonable grounds to believe, is or may be tortious, libelous, illegal, offensive, infringing, harassing, harmful, damaging, disruptive or abusive.
   3. User may, from time to time, engage in sending messages through the Thankview Platform but only in compliance with these Terms and with Company’s Policies. For any such messages (including any email or SMS text messages), User shall be responsible for: (i) ensuring that such messaging includes only entities who either have consented to receiving such messages or have not opted out of receiving such messages; and (ii) ensuring that the content of such messages, including, if applicable, any email headers, comply with the CAN-SPAM Act and any other applicable law, including, but not limited to all laws related to anti-spamming, consumer protection, data privacy, electronic commerce, false advertising, and unlawful materials or practices.
   4. User will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, processes, software, ideas, know-how or algorithms relevant to the Thankview Platform or any software, documentation or data related to any of the foregoing; (ii) modify, translate, or create derivative works based on the Thankview Platform (except to the extent expressly permitted by Company or authorized within the Thankview Platform); (iii) use the Thankview Platform for timesharing or service bureau purposes or otherwise for the benefit of any third party; or (iv) remove any proprietary notices or labels.
   5. User will obtain and maintain at its sole expense and risk any equipment and ancillary services needed to connect to, access, or otherwise use the Thankview Platform, including, without limitation, video cameras, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
   6. None of User’s Messages will infringe or violate any party’s rights, including intellectual property rights, rights of publicity, or misappropriation of trade secrets.
2. COMPANY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, COMPANY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONIFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

5. Indemnification

1. User shall defend, indemnify, and hold harmless ThankView, including its officers, directors, employees, stockholders, representatives, agents, successors and assigns, from and against any and all losses, damages, expenses, costs, claims, suits, proceedings, investigations, or other liabilities (including reasonable attorneys’ fees, costs of litigation, and amounts awarded by a court of competent jurisdiction or agreed upon in settlement) arising out of all of the following: (i) the actions or inactions of the User, including without limitation the negligence and willful misconduct of the User or its employees or agents; and (ii) an allegation that either party has infringed on a copyright, or misappropriates a trade secret, or otherwise infringes, violates or misappropriates a third party’s intellectual property rights or rights of publicity.   
2. User shall not take any action to settle any such claim, suit, or proceeding that would in any manner impose obligations (monetary or otherwise) on the Company without  the Company’s prior written consent.

6. Limitation of Liability.

1. Limitation of Liability. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF EITHER $1,000 OR THE FULL VALUE OF THE CONTRACT BETWEEN COMPANY AND THAT CLIENT TO WHICH USER IS SENDING A REPLY.
2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO USER FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE CLIENT OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS RESTRICTED BY LOCAL OR STATE LAW, THE FOREGOING LIMITATION OF LIABILITY SHALL ONLY BE RESTRICTED SO AS TO ALLOW THE FOREGOING LIMITATION TO APPLY AS BROADLY AS POSSIBLE.

7. Third-Party Services.

Third Party Services. The Company may rely on third-parties or third-party services (collectively, “Third Party Services” and individually a “Third Party Service”) to provide the Services. These Third Party Services are not subject to any of the warranties, service commitments, or other obligations under these Terms. The Company does not control any Third Party Services and will not be liable to the User for any damages arising out of or related to any Third Party Services. Company has no obligation to monitor or maintain Third Party Services, and may disable or restrict access to any Third Party Services at any time. In order to provide User with Services, Company may need to engage or enable any number of Third Party Services. User hereby expressly authorizes the Company to disclose Proprietary Information to the extent necessary for Company, Client, and/or User to utilize the Third Party Services. USER’S USE OF THIRD PARTY SERVICEs IS AT USER’S OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICE OR IMPOSED BY SUCH THIRD PARTY (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY SERVICE)

8. Term and Termination.

1. In addition to any other remedies it may have, ThankView may terminate this Agreement. All sections of these Terms, which by their nature should survive termination, will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability, including Sections 3 (Confidential Information & Proprietary Rights), 5 (Indemnification), 6 (Limitation of Liability), and 9 (Miscellaneous).

10. Miscellaneous.

1. Relationship of Parties. The parties are entirely independent and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, joint venture, or employment arrangement of any kind.
2. Governing Law. These Terms shall be governed by and construed in accordance with the laws of  the State of New York, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the State with respect to any actions arising in connection with this Agreement including, without limitation, actions for interpretation, enforcement, or breach hereof.
3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, the Company may assign this Agreement together with all rights and obligations hereunder, without consent of the User, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. These Terms shall bind and inure to the benefit of the parties, their respective successors, and assigns.
4. Waiver Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
5. Entire Agreement. These Terms, together with the Company Privacy Policy ( the “Terms and Policies”) (with the Privacy Policy  fully incorporated hereby into these Terms by reference), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties hereto. In the event of any conflict between the provisions of this Agreement and the Company’s Terms and Conditions, the terms of this Agreement shall prevail.
6. Severability. If any provision of these Terms shall be held illegal or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.