$1 Thync Trial Terms & Conditions
How does the $1 Thync Trial work?
- Our current *$1 Trial (launched 01/16/2016) is a special price of $99 for the Thync Kit plus automatic enrollment into our Peace of Mind vibe/strip subscription ($29/per month). Your enrollment in our Peace of Mind subscription will automatically begin at the end of your 30-day trial and continue monthly unless you contact us to cancel.
- *Customers who have participated in our previous $1 Trial programs are subject to the Terms & Conditions agreed to at their time of purchase. These terms are noted at the end of this section.
- We charge $1 up front (plus applicable sales tax), and we place a hold on your payment card of $98 (plus applicable sales tax), for 30 days while you decide.
- If you decide to keep Thync, then 30 days after the trial purchase, the hold on your card will be converted to a charge of $98 (plus applicable sales tax). You will also be charged $29 (plus applicable sales tax) for your first month of our Peace of Mind subscription plan. This plan provides auto-refills of adhesive strips based on your usage. The Peace of Mind subscription plan price includes shipping.
- If you decide to return your Thync before the end of the 30-day trial, the hold will be released and you will not incur any additional charges. You will not be enrolled into our Peace of Mind subscription plan.
- $1 Trial fee is non-refundable. The 3-month enrollment into the Peace of Mind plan is non-cancellable for the 3-month term and non-refundable.
- You may cancel your Peace of Mind subscription at any time, and you will continue to have access to the subscription service through the end of your monthly billing period. We do not provide refunds or credit for any partial-month membership periods or unused adhesive strips. You may cancel by contacting our customer service team at email@example.com.
- If you decide to not proceed, and fail to return your Thync device to us, we will automatically charge the $98 (plus applicable sales tax). There will be no refunds issued.
When does my 30-day $1 Thync Trial period start?
- Your $1 Thync Trial starts the day you place your order. You’ll have 30 days from then to try your Thync. Shipping time does count towards your 30 day $1 Thync Trial period, but we think you’ll have more than enough time to try your Thync!
How do payment & returns work?
- You are charged $1 at the time your order is processed for shipping.
- If you decide to keep Thync, then 30 days after your order is shipped, we will convert the hold to charge $98 (plus applicable sales tax) to your payment card. You will also be charged $29 (plus applicable sales tax) for your month of our Peace of Mind* subscription plan ($29/month) to receive as many Strip Packs as you need monthly, based on your usage*. You can cancel this subscription at any time, and you will continue to have access to the auto-refill service through the end of your monthly billing period. We do not provide refunds or credits for any partial-month membership periods or unused strips.
- If you request a return within 30 days from the date you placed your order, you will not incur any additional charges as long as your device is returned within the 30 days.
- If you return your Thync before the end of the 30-day trial, you will not incur any charges. Please alert our customer service team that you are returning your device. We have included a postage-paid return label in your Kit.
- If you decide to not proceed, and fail to return your Thync device to us, we will automatically charge the $98 (plus applicable sales tax) that was held by us on your payment card.
- *Thync will provide up to 13 multi-use strips per month, based on usage.
My Thync Kit is marked “Certified Refurbished” – what does this mean?
- We are able to provide our $1 Trial program by fulfilling orders with either lightly used or unused devices. All devices have been completely inspected and tested to ensure they are in perfect condition.
What if I’m having difficulty using my Thync?
- Our customer service team is available by phone, email, and video chat to personally assist you with your Thync experience.
- - Email: firstname.lastname@example.org
- Phone: 408-484-4808
- We are happy to walk you through using Thync to help you dial into your best Vibes.
How long will it take my Thync to arrive?
- Unless otherwise noted, your Thync will ship within 1-2 business days from the date you place your order and will be delivered within 5-7 business days from the date it ships. Shipping can vary depending upon where you are located. Shipping time does count towards your 30 day $1 Thync Trial period, but we think you’ll have more than enough time to try your Thync!
How do I make a return?
- Included in your shipment is a postage-paid return label. Simply repackage your device with all accessories and remaining strips, affix the return label to the box, and drop off at any USPS location. Please also contact our customer service team at email@example.com so we may be on the lookout for your return.
- Please note that returns, under any circumstance, will not be accepted after the 30-day period has concluded.
How do I cancel my Thync Peace of Mind subscription plan?
- You may cancel your Thync Peace of Mind subscription plan at any time, and you will continue to have access to the subscription service through the end of your monthly billing period. We do not provide refunds or credits for any partial-month membership periods or unused adhesive strips. To cancel, go to the "Your Account" page on our website and follow the instructions for cancellation.
What if my Thync device stops working properly after I purchase it?
- Your Thync comes with a one-year warranty for a replacement device, starting from your date of purchase.
^^ Winter 2016 $1 Trial Program (December 20, 2016 through January 12, 2017
- Our Winter $1 Trial (launched 12/16/2016) is a special price of $99 for the Thync Kit plus 3 months of our Peace of Mind vibe/strip subscription ($29/per month). Your enrollment in our Peace of Mind subscription will automatically continue after the initial 3-month period unless you contact us to cancel.
- We charge $1 up front (plus applicable sales tax), and we place a hold on your payment card of $185 (plus applicable sales tax), for 30 days while you decide. $185 equals the $98 balance for the Thync Kit plus $87 for 3 months of the Peace of Mind subscription.
- If you decide to keep Thync, then 30 days after the trial purchase, the hold on your card will be converted to a charge of $185 (plus applicable sales tax.). This includes your 3-month enrollment into our Peace of Mind subscription plan. This plan provides auto-refills of adhesive strips based on your usage. The Peace of Mind subscription plan price includes shipping.
- If you decide to return your Thync before the end of the 30-day trial, the hold will be released and you will not incur any additional charges.
- $1 Trial fee is non-refundable. The 3-month enrollment into the Peace of Mind plan is non-cancellable for the 3-month term and non-refundable.
- You may cancel your Peace of Mind subscription at the end of the 3 months and any time following by contacting our customer service team at firstname.lastname@example.org.
- If you decide to not proceed, and fail to return your Thync device to us, we will automatically charge the $185 (plus applicable sales tax). There will be no refunds issued.
^^ Fall 2016 $1 Trial Program (November 10, 2016 through December 19, 2016)
- We charge $1 up front, and we place a hold on your payment card of $198 (plus applicable sales tax), for 30 days while you decide.
- If you decide to keep Thync, then 30 days after the trial purchase, your card will be charged $198 (plus applicable sales tax.) and the hold will be released. At the same time, you will be charged and enrolled in our Peace of Mind subscription plan for $29 per month. This plan provides auto-refills of adhesive strips based on your usage. The Peace of Mind subscription plan price includes shipping.
- If you decide to return your Thync before the end of the 30-day trial, you will not incur any additional charges.
- $1 Trial fee is non-refundable
- If you decide to not proceed, and fail to return your Thync device to us, we will automatically charge the $198 (plus applicable sales tax) that was held by us on your payment card.
Coupons are not valid for the $1 Thync Trial.
$1 Thync Trial is only valid in the U.S.
Valid one shipment per address.
No freight forwarding or P.O. boxes accepted.
General Terms and Conditions
These Terms provide that all disputes between you and Thync will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 16 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Thync.
1. Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
2. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
3. Terms of Purchase
- Products. Thync offers the Thync Device and replacement strips through the Service (the “Products”). All Products offered through the Service are subject to availability. Prices for the Products are subject to change without notice at any time. If you purchase a Product through the Service, you represent that you are purchasing for your own internal use and not for resale.
- Shipping and Title Transfer. Separate charges for shipping may be added to the cost of the Products. Title to the products passes to you upon Thync’s delivery of the Products to the first common carrier. Title to any applicable software will remain with Thync or the applicable licensor(s).
- Payment. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars or the currency indicated at check-out, and are non-refundable. Thync may change the prices for the Products at any time. Thync, through our designated third party payment processor, will charge the payment method you specify at the time of purchase. You authorize Thync and our third party payment processor to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, pre-authorization of your credit card account may be sought prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Thync to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums.
- Taxes. All applicable local, city, and state taxes are your responsibility and you agree to pay these taxes. Depending on the order, the applicable tax may be added to your order.
- Thync reserves the right to provide all details of your purchase to our third party debt collection partners who may assist us in recovering amounts or goods properly owed to us if you fail to meet payments or return your device promptly.
- Returns and Limited Warranty. The Return Policy and Limited Warranty that are in effect on the date of Thync’s shipment of your order apply to the Products purchased under that order.
- Product Changes. Thync may make changes to any products or services offered through the Service, or to the applicable prices for any such products or services, at any time, without notice. The materials offered through the Service with respect to products and services may be out of date, and Thync makes no commitment to update the materials available through the Service with respect to such products and services.
4. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service, except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 9) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 4, or assist or permit any person in engaging in any of the acts described in this Section 4.
5. Third-Party Services and Linked Websites. Thync may provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on Thync with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
6. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Thync may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that applicable to a particular feature or content on the Service, subject to Section 8. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
8. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
9. Ownership; Proprietary Rights. The Service is owned and operated by Thync. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Thync are protected by intellectual property and other laws. All Materials included in the Service are the property of Thync or our third-party licensors. Except as expressly authorized by Thync, you may not make use of the Materials. Thync reserves all rights to the Materials not granted expressly in these Terms.
10. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Thync an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
11. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Thync and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Thync Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Disclaimers; LIMITED WARRANTY
- What the warranty covers
Thync Global, Inc. ("Thync" or "we") warrants this Thync hardware product (the “Product”) against material defects in materials and workmanship for a period of one year from the date of purchase ("Warranty Period") by the original end user purchaser ("you"). This warranty gives you specific legal rights, and you may also have other rights that vary under local laws.
- What the Warranty Does Not Cover
Software distributed by Thync with or without the Thync brand name (including, but not limited to, the software that interacts with or that is pre-installed in the Product) is not covered under this limited warranty. Refer to the licensing agreement accompanying the software for details of your rights with respect to its use.
- Thync does not warrant that the operation of the product will be uninterrupted or error-free.
- This warranty does not cover problems or damage resulting from:
- failure to follow instructions relating to the Product's use or other improper operation or maintenance;
- accident, abuse, misapplication, or any unauthorized repair, modification or disassembly;
- connection to improper voltage supply;
- use of cables or other equipment not supplied by Thync; or
- other causes that are not defects in material and workmanship except where such restriction is prohibited by applicable law.
- This warranty does not cover Product marked as "sample" or sold "AS IS".
- Except where prohibited by applicable law, this warranty is nontransferable and is limited to the original purchaser.
- What We Will Do to Correct Problems
If the Product is determined to be materially defective during the Warranty Period, Thync will (at its option) (1) repair or replace the product, or (2) refund the price paid, provided that the product is returned to the point of purchase or such other place as Thync may direct with a copy of the sales receipt or dated itemized receipt. Shipping and handling charges may apply except where prohibited by applicable law. Thync may, at its option, use new or refurbished or used parts in good working condition to repair or replace any product. Any replacement Product will be warranted for the remainder of the original Warranty Period or thirty (30) days, whichever is longer, or for any additional period of time that may be applicable in your jurisdiction.
- How to Obtain Warranty Support
Before submitting a warranty claim, we recommend you visit the support section at support.thync.com for technical assistance. Valid warranty claims are generally processed through the point of purchase during the first 30 days after purchase. Warranty claims that cannot be processed through the point of purchase and any other Product-related questions should be addressed directly to Thync. The addresses and customer service contact information for Thync can be found in the documentation accompanying the Product and on the web at support.thync.com.
- Limitation of Liability
THYNC WILL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM THE USE OR SERVICE OF THE PRODUCT. IN ADDITION, THYNC WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA (WHETHER DIRECT OR INDIRECT) OR COMMERCIAL LOSS FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY ON YOUR PRODUCT EVEN IF THYNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE PROHIBITED BY LAW, THE WARRANTY AND REMEDIES DESCRIBED ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES, AND CONDITIONS, WHETHER ORAL, WRITTEN, EXPRESS, STATUTORY OR IMPLIED. Any recovery is limited to repair, replacement, or refund as described above. Some jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- THE PRODUCT IS NOT INTENDED FOR USE, WHETHER DIRECT OR INDIRECT, WITH INDUSTRIAL, COMMERCIAL, MILITARY OR MEDICAL EQUIPMENT, AND IS NOT INTENDED FOR ANY USE WHERE FAILURE OR FAULT OF THE PRODUCT COULD DIRECTLY OR INDIRECTLY CAUSE RISK OR DAMAGE TO LIFE OR PROPERTY. THIS WARRANTY WILL NOT APPLY IF THE PRODUCT IS USED IN SUCH A MANNER. ANY SUCH USE IS ENTIRELY AT THE USER'S DISCRETION AND RISK. ANY SUCH USER WILL BE SOLELY RESPONSIBLE FOR (AND THYNC DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM SUCH USE.
- Implied Warranties
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THYNC DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTIBILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ANY IMPLIED WARRANTY ON THE PRODUCT DEEMED TO BE ENFORCEABLE IS LIMITED IN DURATION TO THE DURATION OF THE WARRANTY PERIOD ABOVE. Some jurisdictions do not allow limitations on how long an implied warranty lasts, or do not allow exclusions or limitations on certain damages, including damages for death or personal injury caused by negligence, so the above limitation may not apply to you.
- National Statutory Rights
Consumers in some jurisdictions may have legal rights under applicable national legislation governing the sale of consumer goods. These rights are not affected by the warranties in this limited warranty.
- No Other Warranties
No Thync dealer, agent, or employee is authorized to make any modification, extension, or addition to this warranty.
- THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE THYNC ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE THYNC ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
- THE THYNC SERVICE AND PRODUCTS ARE NOT DESIGNED TO DIAGNOSE OR TREAT ANY MEDICAL CONDITION OR DISEASE. THYNC DISCLAIMS ANY AND ALL LIABILITY FOR USE OF THE THYNC SERVICE AND PRODUCTS OTHER THAN IN ACCORDANCE WITH THE INSTRUCTIONS PROVIDED BY THYNC.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE THYNC ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
- SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
- IN NO EVENT WILL THE THYNC ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY THYNC ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- EXCEPT AS PROVIDED IN SECTION 16.4(iii), THE AGGREGATE LIABILITY OF THE THYNC ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO THYNC FOR THE THYNC PRODUCTS AND SERVICES; OR (B) $100.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Thync agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
16. Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Thync in the most expedient and cost effective manner, you and Thync agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THYNC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Thync will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Thync.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Thync's address for Notice is: Thync Global, Inc., 61 E Main Street, Suite C, Los Gatos, CA 95030. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Thync may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Thync must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Thync will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; or (ii) the last written settlement amount offered by Thync in settlement of the dispute prior to the arbitrator’s award.
- Fees. If you commence arbitration in accordance with these Terms, Thync will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Thync for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND THYNC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Thync agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Thync makes any future change to this arbitration provision, other than a change to Thync's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Thync's address for Notice, in which case your account with Thync will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.
18. Contact Information. The Service is offered by Thync Global, Inc., located at 140 W. Main Street 2nd Floor Los Gatos, CA 95030. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
19. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 19 apply. You acknowledge that these Terms are between you and Thync only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 9 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 9 of these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.