Thrive Global Services Agreement

THRIVE GLOBAL AGREEMENT

Dated: May 6, 2020

This Thrive Global Agreement (including any Order Forms (as defined below), this “Agreement”), dated as of the Order Form Effective Date pursuant to the Order Form (the “Effective Date”), is made between Thrive Global Holdings, Inc. (“Thrive Global”) and the Client named at the top of the Order Form (“Client”).  Each of Thrive Global and Client may be referred to herein individually as a “Party” or collectively as the “Parties”.  

  1. Solutions.
    1. Solutions.  Subject to the terms and conditions of this Agreement, Thrive Global will provide or make available the content, media, workshop(s) or program(s), digital product(s), tools, mobile application(s) or other solutions or services, together with any modifications, enhancements, and/or derivative works thereof (each, a “Solution” and collectively, the “Solutions”), to Client as described in a mutually executed order that references this Agreement (including any exhibit and/or schedule attached thereto, an “Order Form”).  Each Order Form is incorporated herein by reference.  Client or any of its Affiliates (as defined below) (each, a “Client Entity”) may enter into Order Forms.  Each Order Form entered into by another Client Entity will be a separate agreement between Thrive Global and such Client Entity that signs the Order Form.  All subsequent references to “Client” herein will refer to the Client Entity that signed the Order Form.  Only the Client Entity that signs the Order Form will be liable for such Client Entity’s obligations under that Order Form. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.  The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
    2. Evaluation.  If any Order Form indicates that Client may access any of the Solutions for free during an evaluation period (the “Evaluation Solution”), then Client may use the Evaluation Solution in accordance with Section 1.3 during such specified evaluation period (the “Evaluation Period”); except that such Evaluation Solution is provided during the Evaluation Period “AS IS”, without indemnification or warranty of any kind.  Thrive Global does not provide any support with respect to the Evaluation Solution during the Evaluation Period.  Also, certain features, services or other functionality may not be available for the Evaluation Solution during the Evaluation Period.  Continued use of the Solutions after the Evaluation Period requires that Client submit the applicable payment set forth in the Order Form.  
    3. License Grant. Subject to the terms and conditions of this Agreement and Order Form, Thrive Global hereby grants to Client, during the Term, a non-exclusive, non-transferable right to access and use the Solutions solely for internal business purposes. Unless otherwise specified in the applicable Order Form, the Solutions may only be accessed and used by employees or contractors of Client who are authorized by Client to access and use the Solutions and, when applicable, have been supplied User identifications and passwords by Client (“Users”).  Client acknowledges and agrees that individual Users will register for use of the Solution directly with Thrive Global, and will agree to and be bound by separate terms governing the User’s use of the Solutions, including the Thrive Terms of Service and privacy policy.    
    4. Ownership; Restrictions. Thrive Global owns all right, title and interest in and to the Solutions, other than the limited rights expressly granted to Client herein and in an Order Form.  Client will not and will not authorize any third party to: (a) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Solutions; (b) translate or create derivative works based on the Solutions; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Solutions available to any third party; (d) remove or obscure any proprietary notices or labels of Thrive Global or its suppliers on the Solutions or (e) access or use the Solutions (or any part thereof) to build a competitive product or service. 
    5. Feedback.  Client may from time to time provide suggestions, comments or other feedback regarding potential improvements, enhancements, functionality or changes (“Feedback”) to Thrive Global with respect to the Solutions. Thrive Global may or may not to proceed with the development of the Feedback. Client hereby grants Thrive Global a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute,  display, perform, and create derivative works of the Feedback and (b) use the Feedback and/or any subject matter thereof itself or through third parties for any purpose without restriction or remuneration of any kind, including without limitation, the right to develop, manufacture,  market, promote, sell, offer for sale, import, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.      
  2. Fees and Payment.  
    1. General.  Client will pay to Thrive Global the amounts due to Client in accordance with the applicable Order Forms and as provided herein.  Unless otherwise provided in an Order Form, Client will pay all fees set forth on an invoice, without offset or deduction,  within thirty (30) calendar days after the invoice date. At its discretion, Thrive Global may increase the pricing set forth on the applicable Order Form for any Renewal Term by giving Client at least sixty (60) days’ notice (which may be sent by email) prior to the end of the then-current Term. With respect to any professional services, Thrive Global will invoice Client (a) on the Start Date for the applicable retainer amount and (b) monthly in arrears with respect to the professional services performed during such month at the hourly rate stated in the Order Form, which amounts will be credited against the retainer until such retainer is depleted. Thrive Global reserves the right to request an additional retainer once the initial retainer is depleted. Thrive Global reserves the right to suspend Client’s access to the Solutions with notice in the event of Client non-payment of outstanding invoices.
    2. Net of Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated, that may be applicable to such amounts payable (collectively, but excluding any taxes based solely on the income of either Party, “Taxes”).  Client will be solely responsible for payment of any sales, use, duty or value-added Tax due in relation to any of Client’s transactions with Thrive Global and Thrive Global may add the amount of such Tax to any invoice to Client or, if applicable, withhold such Tax from any payment to Client.  Any Taxes for which Client is responsible to remit payment to the taxing authorities will not reduce the fees owed to Thrive Global.
  3. Client Assistance; Client Materials; Data.
    1. Client Assistance.  Client will collaborate with Thrive Global and will otherwise reasonably cooperate with and provide prompt assistance to Thrive Global to enable Thrive Global to deliver the Solutions by the Start Date specified in an Order Form and on an ongoing basis, including, but not limited to, any assistance specifically identified on an Order Form.  Client acknowledges and agrees that (a) Thrive Global’s timely provision of the Solutions is contingent upon its receipt from Client of the resources, information and assistance requested by Thrive Global, and (b) Client’s failure to provide the assistance contemplated in this Section may result in delays and/or Client incurring additional costs attributable to such failure.  In the event the Solutions are provided on Client’s premises, Client will provide safe and adequate space, power, internet connectivity, administrative assistance, access to technical resources, qualified personnel familiar with Client’s hardware, software and data processing requirements, and other resources as reasonably requested by Thrive Global. When on Client’s premises, Thrive Global personnel will abide by applicable Client safety, security and similar work-related policies, procedures, controls and rules provided in writing in advance to Thrive Global.  
    2. Client Materials.  Subject to the limited rights granted to Thrive Global in this Section 3, Client owns all right, title and interest in and to any software, content, marks, or other information, material or intellectual property of Client or Client’s suppliers which Client provides or makes available to Thrive Global in connection with Thrive Global’s delivery of the Solutions (the “Client Materials”).  Subject to the terms and conditions of this Agreement, Client hereby grants Thrive Global the non-exclusive, non-transferable right and license to copy, use, modify, distribute, display and disclose Client Materials solely to provide the Solutions to Client and the Users  as contemplated by this Agreement.  
    3. Client Data; User Data.  Client owns the proprietary data or information and any Personally Identifiable Information submitted to Thrive Global by Client in connection with accessing and using the Solutions (“Client Data”). Client Data excludes (a) data and information relating to the operation and/or performance of the Solutions and (b) any information that a User submits to Thrive Global in connection with a User interacting with the Solution or other Thrive Global product or service, including without limitation, all data or information provided by Users in response to diagnostic or other solicitations of information conducted by Thrive Global in connection with the Solution or other Thrive Global products or services (the “User Data”).  Thrive Global owns all right, title and interest in and to the User Data. Client acknowledges that Thrive will not provide Client with access to or use of any User Data. Client hereby grants to Thrive Global (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable, right and license to copy, distribute, display and create derivative works of and use the Client Data to perform Thrive Global’s obligations under this Agreement, (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicensable right and license to copy, distribute, display and create derivative works of and otherwise use the Client Data (i) in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (ii) to the extent that such data is aggregated or anonymized (i.e. no Personally Identifiable Information) (the “Anonymous Client Data”) for Thrive Global’s business purposes. “Personally Identifiable Information” means any information relating to a real person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.
  4. Confidentiality. As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which each operates, to be of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party.  Information will not be deemed Confidential Information if such information: (i) was available to or in its possession prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party or (iii) becomes publicly available or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights or perform its obligations under this Agreement.  Each Receiving Party will use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information.  Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to such employees, delivery partners and agents of the Receiving Party as may have a need to know such information in the course of their duties, provided, that, in each case, such recipients are bound by written confidentiality obligations at least as restrictive as those set forth herein.  Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party(to the extent legally permitted) and uses commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order).  Upon the written request of the Disclosing Party, the Receiving Party agrees to promptly return or destroy all Confidential Information, including all copies thereof in its possession (certifying the fact of such destruction to the Disclosing Party), with the exception that the Receiving Party (a) may retain an archival copy of the Confidential Information and (b) is not required to destroy or alter computer-based back-up files generated in the normal course of its business. Any Confidential Information contained in such archival copies or back-up files will, however, remain subject to the confidentiality obligations of this Section 4.
  5. Term and Termination. 
    1. Term; Termination. This Agreement will commence as of the Effective Date and continue for the Term set forth in the Order Form.  Either Party may terminate this Agreement and/or any Order Form immediately by written notice in the event the other Party is in material breach of any obligation under this Agreement or any Order Form, which breach is incapable of cure or which breach, being capable of cure, has not been cured within thirty (30) days after receipt of written notice.  
    2. Effect of Termination. Upon the expiration or termination of this Agreement, Client will cease to have access to and use of the Solutions, and all amounts owed to Thrive Global under this Agreement which accrued before such termination or expiration will be immediately due and payable.  Notwithstanding the foregoing, Sections 1.4, 1.5, 2, 3.2, 3.3, 4, 5.2, and 6 through 10 (inclusive) will survive the expiration or termination of this Agreement for any reason.
  6. Representations and Warranties.
    1. Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power, right and authority to enter into this Agreement, to grant the rights granted herein and perform its obligations hereunder, (b) such Party will comply with all applicable laws and regulations with respect to its activities under this Agreement, including, without limitation, Applicable Privacy and Data Security Laws (as defined below), (c) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is bound, and (d) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. “Applicable Privacy and Data Security Laws” means privacy, security, and data protection laws, rules, and regulations of any applicable jurisdiction governing Client’s access to the Solution.
    2. Thrive Global Warranties.  Thrive Global further represents and warrants to Client that: (a) Thrive Global will use industry standard measures to prevent the Solutions from containing any “virus”, “trap door”, “Trojan Horse”, “worm”, “self destruction”, “disabling”, “metering” device or any other malicious code (“Malicious Code”), which could impair a Client Entity’s,  permitted use of or access to the same; (b) Thrive Global has the right to grant to the Client a license to use the Solutions as contemplated by this Agreement; and (c) the Solutions will operate substantially in accordance with, and perform, the material functions and features as set out in this Agreement and the Order Form.
    3. Client Warranties.  Client further represents and warrants to Thrive Global that: (a) Client will use industry standard measures to prevent Client Materials and Client Data from containing any Malicious Code, which could impair Thrive Global, or its Affiliates’ use of or access to the same; (b) Client will use reasonable efforts to prevent unauthorized access to, or use of, the Solutions and in the event of any such unauthorized access or use, promptly notify Thrive Global; (c) Client will obtain and maintain all necessary rights, licenses, consents and permissions necessary for Thrive Global (including its agents) to perform its obligations under this Agreement, including, without limitation, the Solutions; (d) Client will ensure that it has all necessary rights to provide to Thrive Global for use as contemplated herein the Client Materials and Client Data, and that the foregoing do not infringe or violate any third party rights; and (e) Client will enable the Solution to integrate and/or access only those systems of Client or any third party systems for which Client has all necessary right and authority, and Client will ensure that if it shares any Client passwords or other credentials with Thrive Global, Client has the right to do so by the terms of such third party systems.    
    4. Security.  Thrive Global will implement and maintain reasonable security procedures and practices with respect to the Client Materials in accordance with the terms of this Agreement and any Applicable Privacy and Data Security Laws.  Thrive Global will notify Client promptly if Thrive Global becomes aware (a) of a Security Event, or (b) that any Thrive Global personnel who has had access to Client Materials has violated this Section applicable to Client Materials.  “Security Event” means an event where Client Materials or Client Confidential Information stored by Thrive Global is accessed or received by an individual or entity not authorized to access or receive such data or information.
  7. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOLUTIONS ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND.  THRIVE GLOBAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. THRIVE GLOBAL DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED, FREE FROM DEFECTS OR WILL MEET CLIENT’S REQUIREMENTS.  CLIENT ACKNOWLEDGES THAT THRIVE GLOBAL IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES (INCLUDING USERS) RELATED TO OR ARISING FROM CLIENT’S OR ANY USER’S USE OF THE SOLUTIONS.
  8. Indemnification. Thrive Global will indemnify, defend and hold harmless Client from and against any third party claim arising out of related to an assertion that any Solution infringes or misappropriates any intellectual property right of the third party.  Thrive Global will pay those costs and damages incurred by Client that are specifically attributable to such claim.  The foregoing obligations are conditioned on Client (a) notifying Thrive Global promptly in writing of such claim, (b) giving Thrive Global sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Thrive Global’s request and expense, assisting in such defense or settlement.  If any Solution becomes, or in Thrive Global’s opinion is likely to become, the subject of an infringement claim, Thrive Global may, at its option, and as Client’s sole remedy, either (i) procure for Client the right to continue using the Solution, (ii) replace or modify the Solution so that it becomes non-infringing, or (iii) accept return of the Solution and give Client a pro-rata refund of the fees paid by Client specifically for such Solution for the period after the date of termination.  Notwithstanding the foregoing, Thrive Global will have no obligation under this Section or otherwise with respect to any claim based upon (A) any use of a Solution not in accordance with this Agreement or for purposes not intended by Thrive Global, (B) any use of a Solution in combination with other products, equipment, software, or data not supplied by Thrive Global, or (C) any modification of a Solution by any person other than Thrive Global. Client will indemnify, defend and hold harmless Thrive Global from and against any third party claim arising out of or related to an assertion that Client is not authorized to provide Client Materials, Client Data or other information (including Personally Identifiable Information) to Thrive Global hereunder.  Client will pay those costs and damages incurred by Thrive Global that are specifically attributable to such claim.  The foregoing obligations are conditioned on Thrive Global (X) notifying Client promptly in writing of such claim, (Y) giving Client sole control of the defense thereof and any related settlement negotiations, and (Z) cooperating and, at Client’s request and expense, assisting in such defense or settlement. Thrive Global will have the right, but not the obligation, to participate at its expense in any such suit through counsel of its choosing.  
  9. Limitation of Liability. EXCEPT FOR (A) LIABILITY ARISING OUT OF A BREACH BY CLIENT OF SECTION 1.3 OR 1.4, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8, AND/OR (C) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATION PURSUANT TO SECTION 4 (COLLECTIVELY, THE “EXCLUDED MATTERS”), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, AND/OR THE USE OF OR INABILITY TO USE THE SOLUTIONS PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND/OR THE USE OF OR INABILITY TO USE THE SOLUTIONS PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PROPERLY PAYABLE BY CLIENT TO THRIVE GLOBAL IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THE PROVISIONS OF THIS SECTION 9 FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF THE FORM OF ACTION.
  10. General.  Neither Party may assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that Thrive Global may assign or transfer this Agreement or all of its rights and obligations under this Agreement, without Client’s consent (a) to a successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of it business or assets to which this Agreement relates, (b) to an Affiliate, or (c) in connection with a change of control of Thrive Global. This Agreement will be binding upon the Parties, their successors, and permitted assigns. This Agreement will be construed in accordance with the laws of the State of New York (excluding its choice of law rules).   Each Party agrees that disputes under this Agreement will be brought exclusively in courts located within New York County, New York.  This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party. Thrive Global may list Client’s name (including by displaying any Client’s trademark) and identify the business relationship between the Parties on Thrive Global’s website and in other marketing and advertising collateral, together with a list of other customers, and Client agrees that disclosure of Client’s relationship with Thrive Global is a condition of this Agreement. Any waiver of a Party’s rights must be in writing signed by the waiving Party.  No waiver of any breach of any term or condition of this Agreement will constitute a waiver of any subsequent breach.  If any term is held unenforceable, such term will be restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of this Agreement will remain in full force and effect.  All notices under or related to this Agreement will be in writing and will be deemed given: (i) on receipt when delivered personally; (ii) upon confirmation of receipt when sent by confirmed email; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid or (iv) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt.  All communications will be sent to the addresses set forth in the Order Form or such other addresses designated pursuant to this Section 10.  Neither Party is liable for failure or delay in performing its obligations (excluding payment obligations) because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or unanticipated degradation, failure of third party networks or communications infrastructure, or other similar events beyond the reasonable control of a Party.  Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, Thrive Global does not guarantee the Solutions will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance.  Nothing in this Agreement will be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the Parties. Each Party’s status hereunder is that of an independent contractor.  Except as provided herein, neither Party will have the authority to obligate or bind the other Party in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.  This Agreement, together with all Order Forms, contains the entire agreement and understanding between the Parties and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions. No term of any Order Form will amend the terms of this Agreement unless an Order Form specifically states that it will govern with respect to such conflicting term.  Any Order Form amending a term of this Agreement will amend such term only with respect to the Solutions provided in such Order Form.

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