Legal

1. Statements of Work. thrv will provide Professional Services as set forth in one or more statements of work ("SOW(s)"), separately executed by thrv and the Company, providing for the provision of Professional Services. The Professional Services to be performed and/or delivered by thrv to the Company shall be in accordance with thrv’s proposal to the Company (the “Proposal”) and the terms and conditions found here at thrv.com/legal and the related SOW. The terms found here at thrv.com/legal will be incorporated and will apply, in their entirety, to all current and future SOWs as if such terms were restated in each such SOW, subject only to such modifications as are expressly provided in the SOW, which modifications shall prevail in the event of a conflict.

2. Services.  In consideration of the payment by the Company of all Services Fees associated with the Professional Services set forth in the applicable SOW, and the Company’s compliance with the terms and conditions found here at thrv.com/legal and the applicable SOW, thrv will provide the Company with the Professional Services set forth in the SOW. 

3. Ownership of Output. If thrv provides the Company with Professional Services  (which may include research, training, workshops, or analysis), the Company retains all right, titles, and interest in and to (i) any data provided to thrv and (ii) any output resulting from the application of the Services to such data. In furtherance of the foregoing, thrv hereby assigns the output of any fully paid for Professional Services to the Company. 

   Notwithstanding the foregoing, the Company understands, acknowledges and agrees that thrv provides its Professional Services to many other customers and that the Company does not have any right to any such other customer’s data.  

   In furtherance of the foregoing, the Company hereby agrees not to bring any claim, complaint, demand or legal, governmental or regulatory action against thrv or any customer of thrv for any output generated from the application of the Professional Services to the data of any such customer.  

   Nothing herein prevents thrv from performing similar Professional Services that may or may not result in similar output for thrv and/or others and the creation of the output and delivery thereof shall in no way be deemed a violation of any of the Company’s rights.

1. Service Fees. As consideration for providing the Professional Services, Company shall pay to thrv the compensation set forth in the applicable SOW (the “Service Fees”) in accordance with the pricing set forth therein. thrv shall invoice the Company for the Service Fees as the Professional Services are performed, which invoices shall be due and payable by the Company within thirty (30) days of receipt.

2. Travel Expenses. Any travel, lodging, dining, and incidental expenses incurred by thrv in accordance with the mutual agreement of thrv and the Company in connection with providing the Professional Services shall be in accordance with the Company’s travel and entertainment expense reimbursement policy and shall be reimbursed by the Company upon receipt of an invoice thrv delivers to the Company that includes reasonable documentation substantiating such expense. If the Company does not have a travel and entertainment expense reimbursement policy, any such expenses shall be incurred in accordance with the mutual agreement of thrv and the Company. Notwithstanding the foregoing, air travel over one and a half hours by thrv employees in connection with providing the Professional Services will be business class.

3. Third Party Research Expenses. Third Party Research Expenses. Any third-party expenses incurred by the Company in connection with the provision of the Professional Services by thrv will be approved in advance and paid for by the Company directly to the third party. thrv shall not incur or be responsible for any such third-party expenses.

4. Taxes. The Company must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Professional Services and the transactions contemplated by the Professional Services (other than taxes based on thrv’s net income) and will indemnify thrv for all such taxes, fees or duties and/or related late payment fines and penalties incurred by thrv as a result of the Company’s failure to timely pay them.

1. Professional Services Terms and Termination. The Company agrees that these Terms will remain in effect for the longer of the duration of the Software Subscription or while the Company has an SOW in effect with thrv. Each SOW will commence on the effective date set forth therein and continue until the earlier of (i) the conclusion of the Professional Services provided for therein and (ii) its termination as hereinafter provided. Either thrv or the Company may terminate an SOW at any time for convenience. Further, notwithstanding anything stated herein to the contrary, thrv or the Company may immediately terminate one or more SOWs, effective upon written notice delivered via email, if either party: (i) becomes insolvent; (ii) files a petition in bankruptcy or reorganization or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors; (v) ceases to do business in the ordinary course; (vi) takes any corporate action for its winding-up, dissolution or administration; (vii) enters into an agreement for the extension or readjustment of substantially all of its obligations; or (viii) breaches any provision of the SOW or these Terms.

2. Actions on Termination. On the effective date that an SOW expires or terminates, as the case may be, for any reason, each Receiving Party, as hereinafter defined, must promptly return or destroy the Disclosing Party’s, as hereinafter defined, Confidential Information and certify such return or destruction. The following provisions will survive the expiration or termination of the SOW for any reason: Company Access; Ownership of Data and Output, Service Fees, Travel Expenses, Third Party Research Expenses, Taxes, Confidentiality, Indemnification, Limitation of Liability and 7 (Professional Services General Provisions).

Professional Services Availability

1. Response time. When Company has executed an SOW and/or a Subscription Authorization, thrv will respond to communications from the Company within a commercially reasonable period of time, consistent with the content of the communication.

2. Work Review. When Company has executed an SOW that requires Company work review, thrv will review received work within a commercially reasonable period of time, taking into account federal holidays when applicable.

3. Scheduling Meetings. When Company has executed an SOW including standing or ad-hoc meetings, thrv professionals will make commercially reasonable efforts to be available at the times requested by Company. Given that this will not always be possible, thrv professionals will respond with alternate times that are within a commercially reasonable period of time, taking into account federal holidays when applicable.

4. On-site Sessions. When Company has executed an SOW that includes on-site sessions, Company shall request such sessions no less than two weeks before the desired date of the sessions. In the event a thrv Professional is not available for the requested date(s), the thrv Professional will respond with alternate dates that are within a commercially reasonable period of time, taking into account federal holidays when applicable.

Confidentiality

1. Definition. “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to the SOW that is designated as “confidential” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.

2. Limited Use and Maintenance. Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose except to exercise its rights and perform its obligations under the SOW. Receiving Party shall not disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of Disclosing party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality as least as restrictive as the obligation of confidentiality herein. Receiving Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of Disclosing Party, and will take at least those measures that it takes to protect its own most highly confidential information.

3. Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing and will cooperate, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy. If disclosure is ultimately required, Receiving Party will furnish only that portion of Disclosing Party’s Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that disclosure will receive confidential treatment.

1. thrv Indemnification. thrv shall (i) defend, or at thrv’s option settle, any claim brought against the Company by a third party to the extent it alleges that the deliverables of the Professional Services (excluding third-party materials) infringe any third-party patent, copyright or trade secret recognized under the laws of the United States, and (ii) pay, subject to the limitations of liability set forth herein, any damages awarded in a final judgment, or amounts agreed to in a monetary settlement, in any such claim defended by thrv, provided that the Company provides thrv (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by thrv in connection with the defense or settlement of any such claim. If any such claim is brought or, in thrv's judgment may be threatened, thrv may, at its sole option and expense: (a) procure for the Company the right to continue to use the applicable thrv Service; (b) modify the thrv Service to make it non-infringing; or (c) if none of the foregoing is commercially practicable, terminate this Agreement without further liability.

2. Disclaimer. The foregoing provisions of this section 5 state thrv’s entire liability and obligations, and the company’s exclusive remedy, with respect to any actual or alleged infringement of any intellectual property rights by thrv.

3. Company Indemnification. Company shall (i) defend, or at the Company’s option settle, any claim brought against thrv by a third party relating to (a) any data provided or made available by, or on behalf of, Company; and (b) the Company’s use of the thrv Professional Services other than in accordance with this Agreement, and (ii) pay, subject to the limitations of liability in this Agreement, any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by the Company; provided that thrv provides the Company (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by the Company in connection with the defense or settlement of, any such claim.

1. Limitation of Liability Disclaimer. The foregoing provisions state thrv’s entire liability and obligations, and the company’s exclusive remedy, with respect to any actual or alleged infringement of any intellectual property rights by thrv. The professional services are provided “as-is” without warranty of any kind, whether express, implied or statutory. thrv hereby disclaims any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement and any warranties arising from conduct or course of dealing.

2. Limitation of Liability. Except for any action by thrv for nonpayment, each party’s breach of Section 5 (Confidentiality) or the Company’s breach of Sections 1, 4, or 5 of Copyright, Patent and Content Ownership in USE OF THRV SOFTWARE in no event will either party be liable for any indirect, special, incidental, exemplary, punitive, treble or consequential damages (including, without limitation, loss of business, revenue, profits, goodwill, data or other economic advantage) arising out of or relating to this agreement, however caused and based on any theory of liability. Except for any action by thrv for nonpayment, each party’s breach of Section 5 (Confidentiality) or the Company's breach of Sections 1, 4, or 5 of Copyright, Patent and Content Ownership in USE OF THRV SOFTWARE, each party’s total liability (including attorneys’ fees) arising out of or related to this agreement will not exceed the amount paid by the company under this agreement during the six-month period prior to the date the claim arose.

1. Relationship. Nothing in this Agreement shall in any way be construed to constitute thrv as an agent, employee, partner or representative of the Company. thrv will have no authority to enter into contracts which bind the Company or create obligations on the part of the Company without the express prior authorization of the Company or pledge the credit of the Company. Instead, thrv’s relationship with the Company will be that of an independent contractor performing the Services. To the extent applicable, if any, thrv agrees to furnish all tools and materials necessary to accomplish its responsibilities under this Agreement, and thrv shall incur all expenses associated with such performance with the exception of the expenses in Section 2.2 (Travel Expenses) and Section 2.3 (Third Party Expenses).

2. Information Security. thrv will comply with reasonable information security policies and requirements the Company provides to thrv by written notice reasonably in advance of the time compliance required.

3. Assignment. Neither party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either of party may assign this Agreement without the other’s written consent as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of either party’s respective assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

4. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including, without limitation, an act of war, terrorism, act of God, pandemic, epidemic, earthquake, flood, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

5. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. If either party breaches or threatens to breach the provisions of Sections 1.3 or 4 (Confidentiality), each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages subject to the terms of Section 7.6 (Disputes).

6. Disputes. thrv and the Company agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS (www.jamsadr.com), or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for non-binding arbitration as set forth herein. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements herein. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.

7. Miscellaneous. This Agreement, together with any SOW, is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. No terms of any SOW, acknowledgement or other form provided by the Company will modify this Agreement, regardless of any failure by thrv to object to such terms. Any ambiguity in this Agreement shall be interpreted without regard to which party drafted this Agreement. This Agreement may only be amended by a written amendment signed by both parties. Any required notice shall be given by electronic mail to the email address below, or by overnight courier service or U.S. mail. Notices will be deemed to have been given at the time of actual delivery in person, confirmed receipt if by electronic mail, or 1 business day after delivery to an overnight courier service. Waiver of any term of this Agreement or delay in enforcing any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. A business day means a day other than a Saturday, Sunday, bank holiday, the Friday after a bank holiday that falls on a Thursday, or the Monday before a bank holiday that falls on a Tuesday or, unless thrv has ceased operations, any other day on which thrv’s offices are closed.