BEFORE USING THE THRIVE COMMERCE SAVINGS CENTER APPLICATION (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”) AND THRIVE COMMERCE LLC (“THRIVE”). PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE SAVINGS CENTER APPLICATION. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND THRIVE, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE ORDER FORM.
End User Terms Of Service for the Savings Center Application
1. The Savings Center Application. Thrive will make the Savings Center Application available to (a) Customer and (b) individuals who are authorized by Customer to use Savings Center Application on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Thrive at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Thrive hereby grants the Customer and its Users a limited, non-exclusive right to access the Savings Center Application during the Subscription Term and in accordance with these Terms (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Thrive with respect thereto). “Savings Center Application” means the online, website application provided by Thrive to host a deals page(s) on Customer’s website, the provided API to track data related to Customer’s orders for digital coupon redemptions, and the use of an administrative system located at http://tms.thrivecommerce.com.
2. Subscription Term. Customer’s initial subscription term for the Savings Center Application commences on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to Customer to access the Savings Center Application (the “Subscription Start Date”). The Subscription will continue for the “Subscription Term” specified in the Order Form (the “Subscription Term”) and may be renewed in accordance thereof.
3. Confidentiality. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“) that is designated in writing as confidential or, by the nature of the information, should be designated as confidential, as well as the terms and conditions of these Terms. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
4. Fees and Taxes. The Customer shall pay to Thrive all of the fees specified in the Order Forms. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies set forth in these Terms, Thrive reserves the right to suspend the Savings Center Application without liability to Thrive, until such account is paid in full.
5. Proprietary Rights. The Savings Center Application and all intellectual property rights therein and all intellectual property rights relating to the provision of the Support are owned or licensed by Thrive. Except for the Subscription granted hereunder, nothing in these Terms gives the Customer any right, title or interest to the Savings Center Application. Customer shall retain all right, title, and ownership in and to the performance metrics contained in any reports generated by the Savings Center Application (the “Reports”.) Customer shall provide monthly reporting of in-store offer redemptions from Savings Center Application, which shall include orders and revenue, if applicable. Thrive shall be able to utilize all performance data within the Savings Center Application for internal purposes only. Notwithstanding, Customer acknowledges that in generating the Reports, Thrive may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Thrive (“Thrive Property”). The parties agree that Thrive shall retain all right, title, and ownership in and to the Thrive Property, including all intellectual property rights pertaining thereto. Customer shall not: (i) modify, translate, or create derivative works based on the Savings Center Application; (ii) create any link to the Savings Center Application or frame or mirror any content contained or accessible from the Savings Center Application, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Savings Center Application; or (iv) access the Savings Center Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Savings Center Application. Customer may use certain materials, products, marketing collateral, and processes that belong to Customer (“Customer Property”). The parties agree that Customer shall retain all right, title, and ownership in and to the Customer Property, including all intellectual property rights pertaining thereto.
6. Termination. The Subscriptions granted hereunder may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of a Subscription without cause shall not relieve Customer of the obligation to pay Thrive the fees agreed in the Order Form.
7. Surviving provisions. The following provisions shall survive any termination or expiration of the Subscription: Sections 3, 4, 5, 11, 13, 14, 15, 16, 17, 18 and 19.
8. Corporate Authority and Compliance with Laws. Each party represents and warrants that it has the legal power and authority to enter into these Terms and the Order Form and that both are executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms and the Order Form(s). The parties shall comply with all applicable laws and regulations.
9. Functionality Warranty. Thrive warrants that the Savings Center Application will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of any applicable documentation provided by Thrive.
10. Security Warranty. Thrive has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Savings Center Application at reputable third party Internet service providers and hosting facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Thrive, whether by accident or otherwise.
11. Disclaimer. Except as expressly provided herein, THRIVE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Thrive does not warrant that the Savings Center Application can or will meet the Customer’s requirements or that the operation of the Savings Center Application will be uninterrupted or error-free. Further, Thrive does not warrant that all errors in the Savings Center Application can or will be corrected.
12. Customer’s Content. The Customer retains all right, title and interest in and to all data uploaded by Customer into the Savings Center Application (“Customer Content”).
14. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. THRIVE’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID AND/OR DUE BY THE CUSTOMER. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
15. Thrive Indemnification. Thrive shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Savings Center Application, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Thrive reasonably believes that the Customer’s use of any portion of the Savings Center Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Thrive may, at its expense: (i) procure for the Customer the right to continue using the Savings Center Application; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Savings Center Application as set out herein. Thrive shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Savings Center Application with other equipment or software not supplied by Thrive or in a manner not consistent with Thrive’s instructions. THIS SECTION 15 SETS FORTH THRIVE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
16. Customer Indemnification. The Customer agrees to indemnify and hold Thrive harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Thrive by a third party arising from or relating to Customer’s use of the Savings Center Application in violation of the Use Guidelines stated in Section 14 above.
17. Right to Audit. If Customer utilizes in-store coupons and/or Apple Wallet offers within the Savings Center Application, Customer shall provide Thrive with monthly reporting on the number of coupon redemptions. Thrive (or its designated auditor or accounting professional) shall have the right to audit the records pertaining to in-store coupon and Apple Wallet redemptions no more than once each calendar year during normal business hours upon thirty (30) days advance notice. If Thrive’s audit reveals more than a ten percent (10%) inaccuracy between the initial and audited reports, Thrive may conduct one (1) additional audit during such calendar year. The auditor selected by Thrive will be obliged to execute a reasonable confidentiality agreement prior to commencing any such inspection. In addition, Customer may, at its expense, have a representative or agent familiar with its record keeping systems be present at the audit to assist Thrive’s auditor in using such internal record management system. Thrive shall bear the costs and expenses of inspections conducted under this Section 17.
18. Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
19. General Provisions. These Terms, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. Customer agrees that Thrive may use Customer’s name and logo on Thrive’s website, and as a part of a general list of Thrive’s customers for use and reference in corporate, promotional and marketing literature. The parties are independent contractors. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorized as an agent, employee or representative of the other party. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the County of Philadelphia in the Commonwealth of Pennsylvania, USA, and all courts competent to hear appeals there from. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. Any notices under these Terms shall be in writing and shall be deemed to have been delivered: the next business day after sending by confirmed facsimile or email. Notices to Thrive shall be addressed to the CEO. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect. Neither party shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.