Terms, AUP, and Data Privacy
Thynk’s Terms & Conditions, Data Privacy Terms, and Acceptable Use Policies
1. PURPOSE
This Agreement governs Customer's purchase and use of Thynk's Skylar's Run adaptive learning platform, related hardware, and professional development services described in the above dated Quote.
2. LICENSE GRANT
Thynk grants Customer a non-exclusive, non-transferable, limited-term license to use Skylar's Run and its related software components solely for educational purposes within Customer's organization during the Term. Customer may not rent, lease, sublicense, assign, or transfer the software or hardware to any third party.
Customer acknowledges that all Licensed Materials constitute valuable proprietary information and trade secrets of Thynk, embodying substantial creative efforts and confidential know-how. Unauthorized use, disclosure, or duplication will cause irreparable harm. Thynk shall be entitled to seek equitable relief, including injunctive relief, in addition to any other remedies at law.
Customer retains all rights to its own implementation materials, training guides, or documentation created independently of Thynk’s proprietary content. Nothing in this Agreement shall restrict Thynk from developing materials, training programs, or tools that may be similar to those independently created by Customer, provided such materials do not use Customer’s Confidential Information.
3. HARDWARE USE
Thynk will provide Attention Visualization (AV) Headsets for use during the Term. Hardware remains Thynk's property and is leased to Customer for the duration of this Agreement. Thynk will maintain and repair units under normal use; damage due to negligence or misuse may incur replacement charges at then-current rates. All headsets must be returned within thirty (30) days of contract expiration or termination in good working order. Unreturned or damaged units may be invoiced at a reasonable replacement cost based on current market value.
4. TRAINING, SOFTWARE UPDATES, AND SUPPORT
Thynk will deliver the Train-the-Trainer Professional Development Package. This will be customized based on school or district size and needs. An example of what a PD package may include:
- Champion Workshop(s)
- Technical Workshop(s)
- Educator Workshop(s)
- Coach Portal Workshop(s)
- 8-Week Results Review
Thynk will also provide regular software updates, onboarding assistance, and technical support to ensure effective program delivery, including troubleshooting and progress reporting tools.
5. FEES AND PAYMENT
Total Commitment: will be displayed on the proposal
Annual software licenses: will be displayed on the proposal
Custom training package: based on school or district size, will be displayed on the proposal
Headset use: included
Thynk shall invoice Customer upon execution of this Agreement. All payments are due Net 30 days from invoice date. Late balances accrue a 2% monthly service charge.
Customer is responsible for applicable sales or use taxes, if any, except taxes on Thynk's income.
6. DATA PRIVACY, ACCESS, AND USE
Thynk will comply with all applicable U.S. privacy laws, including FERPA, COPPA, and relevant state data-protection laws. Student data remain the property of the educational institution and will be used solely to provide and improve Thynk’s services.
Thynk may use de-identified or aggregated data derived from student activity for internal research, product improvement, analytics, and reporting purposes. De-identified data shall not include any information that personally identifies a student or school and may be used for research, evaluation, or public reporting in aggregate form.
Schools and parents/guardians may request access to or deletion of identifiable student data at any time. Thynk will respond to such requests in accordance with applicable laws and contractual obligations.
7. INTELLECTUAL PROPERTY
All intellectual property in Thynk's software, hardware, content, documentation, and training materials remains the sole property of Thynk. Customer receives only the limited use rights defined herein and may not copy, modify, reverse engineer, or create derivative works of Thynk's products.
In the event any Licensed Material is found or alleged to infringe third-party rights, Thynk may, at its option and expense, (a) obtain the right for Customer to continue using such Licensed Material; (b) modify or replace it to make it non-infringing; or (c) terminate the affected license and refund the prorated portion of fees paid for the remainder of the Term. The foregoing states Customer’s sole and exclusive remedy and Thynk’s entire liability for any claim of infringement.
Thynk or its licensors shall have the exclusive right to prosecute and defend any claims involving the intellectual property comprising the Licensed Materials, and Customer agrees to cooperate in any such action at Thynk's reasonable request.
8. INDEMNIFICATION
(a) Indemnification by Thynk. Thynk shall indemnify, defend, and hold harmless Customer, its officers, directors, employees, and agents from and against any and all losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of any claim by a third party that (i) the Licensed Materials infringe any copyright, patent, or trademark of such third party, or (ii) Thynk’s gross negligence or willful misconduct.
(b) Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Thynk, its officers, directors, employees, and agents from and against any and all claims, damages, liabilities, and expenses arising out of Customer’s breach of this Agreement or Customer’s gross negligence or willful misconduct.
9. WARRANTIES AND DISCLAIMER
Thynk warrants that it will deliver the services in a professional and workmanlike manner and that the software will operate substantially as described. Except as expressly stated, Thynk disclaims all other warranties, including implied warranties of merchantability and fitness for a particular purpose.
10. LIMITATION OF LIABILITY
Neither party shall be liable for indirect, incidental, or consequential damages. Thynk's total aggregate liability under this Agreement shall not exceed the total fees paid by Customer. These exclusions do not apply to obligations under Sections 2 (License Grant), 6 (Data Privacy), or 8 (Indemnification), or to a party's gross negligence or willful misconduct.
11. CONFIDENTIALITY
Each party shall protect the other’s Confidential Information with the same degree of care it uses to protect its own confidential information, but not less than reasonable care. Each party agrees to use the other’s Confidential Information solely for performing this Agreement. Confidential Information includes trade secrets, customer data, and non-public business or technical information. This obligation survives termination.
If either party becomes legally required to disclose Confidential Information, it shall promptly notify the other and cooperate in seeking protective measures.
12. FORCE MAJEURE
Neither party will be liable for any failure or delay in performance caused by events beyond reasonable control, including acts of God, fire, floods, wars, government actions, labor disputes, or network failures. Performance timelines will be extended for the duration of such events.
13. PUBLIC ANNOUNCEMENTS AND BRANDING
Customer shall not use Thynk's name, logo, or trademarks in press releases, marketing, or promotional materials without Thynk's prior written consent.
14. ASSIGNMENT
Neither party may assign this Agreement without prior written consent, except that Thynk may assign it to an affiliate or successor in connection with a merger, acquisition, or sale of assets. Any unauthorized assignment is void.
15. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed by and construed under the laws of the State of Delaware, without regard to its conflict-of-law rules. The parties consent to exclusive jurisdiction in the state or federal courts located in Delaware. Before initiating legal action, the parties agree to attempt in good faith to resolve disputes through non-binding mediation.
16. RENEWAL
This Agreement may be renewed by mutual written consent of both parties. Renewal pricing, terms, and duration shall be set forth in a subsequent written quote or order form issued by Thynk and accepted by Customer. Unless otherwise agreed in writing, renewal shall not automatically occur, and pricing for renewals may be adjusted to reflect current rates.
17. MISCELLANEOUS
This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements. Amendments must be in writing and signed by both parties. Both parties act as independent contractors.