• Software Access Terms.

    1. Thrivable hereby grants Software Access to the Customer. Usage is limited to the Usage Metrics and volumes stated in the Service Order. 

    2. The Customer may not (a) authorize or license any third-party other than its, and its affiliates’, officers, employees and independent contractors to use the Software Product or any part thereof (whether directly or indirectly), or (b) distribute, license, sublicense, promote, distribute, market, sell, lease, assign, convey, transfer or transmit the Software Product or any part thereof. Access credentials may not be used by more than one individual. 

    3. All right, title and interest in and to each of the following is, shall be and at all times shall remain the exclusive property of Thrivable and any third-parties whose software programs may have been, or may be, incorporated into the Software Product: (a) the Software Product, (b) any software, software modifications, derivative works, processes, and other intellectual property rights relating to data processing and information technology developed or held by either Party from its use of the Software Product and (c) all copyright, trademark, patent, trade secret and intellectual property rights in the Software Product. Thrivable, on behalf of itself and any third parties with software that may have been, or may be, incorporated into the Software Product, reserves all of its, and all of such third parties’, rights in the same.

    4. Customer shall not use the Software Product for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software product or associated documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Product or documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software Product, in whole or in part; (iv) remove any proprietary notices from the Software Product or documentation; (v) use the Software Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) solicit names, phone numbers, email addresses, physical addresses, zip codes, usernames or other contact information from panelists, (vii) direct panelists to undertake activities outside of the Software Product, such as visiting a third-party website, signing up for another database, etc.

    5. Customer agrees not to use or permit use of the Software Product to display, store, process or transmit any Customer Data, that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) constitute an infringement of intellectual property or other proprietary rights, or (v) violate privacy rights, or any other applicable laws, ordinances or regulations. If Thrivable receives information that Customer is in violation of any of the foregoing restrictions, Thrivable will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, Thrivable reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to the Software Product. Thrivable shall have no liability to Customer in the event that Thrivable takes such action.

    6. Notwithstanding anything to the contrary in this Agreement, Thrivable may temporarily suspend Customer’s and any authorized end user’s access to any portion or all of the Software Product if: (i) Thrivable reasonably determines that (A) there is a threat or attack on the Software Product; (B) Customer’s or any authorized end user’s use of the Software Product disrupts or poses a security risk to Thrivable or to any other customer or vendor of Thrivable; (C) Customer, or any authorized end user, is using the Software Product for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Thrivable’s provision of the Software to Customer or any Authorized End User is prohibited by applicable law; (ii) in the event that Customer’s use of the Software Product is in excess of the Usage Metrics or volume, or (iii) in accordance with §2.2 (any such suspension described in subclause (i), (ii) or (iii), a “Service Suspension”). Thrivable shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Subscription following any Service Suspension. Thrivable shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Thrivable will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

    7. The Customer shall (a) use the Software Product in accordance with the Agreement, (b) promptly report any known use of the Software Product in excess of the Usage Metrics and volume; (c) promptly report to Thrivable any flaws, errors, bugs, defects or other problems in or with the Software Product that it identifies, (d) notify Thrivable of any change to the Customer’s Contact Information and (e) comply with the provisions of Thrivable’s privacy policy.  

 

  • Fees; Invoices.

      1. Unless otherwise provided in the Subscription Order Form or Quote, the Customer shall pay to Thrivable the Amounts Due within the 30-day period that follows the Signature Date.  If the Initial Term is for more than 1 year, the Customer shall pay to Thrivable the Amounts Due for each such year prior to the annual anniversary of the Subscription Start Date.

      2. Thrivable shall deliver to the Customer an invoice for any Amounts Due. If there are any Amounts Due by the Customer, (a) the Customer shall pay the undisputed portion of such Amounts Due during the Invoice Period, (b) the Customer shall be responsible for paying, and/or shall reimburse Thrivable for, any sales, use, excise, value-added, withholding or other taxes due or payable as a result of such Amounts Due, and (c) the Customer shall reimburse Thrivable for any fees, costs, expenses (including reasonable attorneys’ fees and costs) or other amounts incurred in collecting such Amounts Due.  Interest at a rate of 1% per month shall accrue on any Amounts Due by the Customer that are not disputed during, and remain unpaid at the end of, the Invoice Period corresponding thereto. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, if such failure continues for 10 days or more, Thrivable may suspend Customer’s and its authorized users’ access to any portion or all of the Software Product until such amounts are paid in full.

  • Representations & Warranties.

      1. The Customer hereby represents and warrants to Thrivable that, as of the Signature Date, it has the full right, power and authority to enter into, and fully perform its obligations according to, the Agreement.

      2. Thrivable hereby represents and warrants to the Customer that, as of the Signature Date, (a) it has the full right, power and authority to enter into, and fully perform its obligations according to, the Agreement, (b) it has the full right, power and authority to grant to the Customer the rights and licenses described herein and (c) it has not knowingly infringed upon the intellectual property rights of any third party or knowingly misappropriated the trade secrets of any third party in granting Software Access to the Customer.

  • Confidential Information and Data Security. 

      1. From time to time during the Term, either Party may disclose or make available to the other Party information about its research, development, business strategies, business affairs, products, confidential intellectual property (including any patent disclosures and inventions, whether patentable or not), trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

      2. Thrivable has implemented and will maintain technical and organizational measures referenced in the Data Processing Agreement attached hereto as Exhibit A (“DPA”) to secure personal data processed in the Software Product in accordance with applicable data protection law.  

  • Customer Data; Feedback; Aggregated Statistics. 

      1. Thrivable acknowledges that, as between Thrivable and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Thrivable a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Thrivable to provide services to Customer. Customer represents and warrants that it has the all rights and licenses to grant the foregoing license to Thrivable and will indemnify Thrivable in connection with any breach thereof. 

      2. If Customer or any of its employees or contractors sends or transmits any communications or materials to Thrivable by mail, email, telephone, or otherwise, suggesting or recommending changes to the Thrivable IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Thrivable is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Thrivable on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Thrivable is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Thrivable is not required to use any Feedback.

      3. Notwithstanding anything to the contrary in this Agreement, Thrivable may monitor Customer’s use of the Software and collect and compile Aggregated Statistics. As between Thrivable and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Thrivable. Customer agrees that Thrivable may use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

  • Indemnification.

      1. Thrivable shall indemnify, defend and hold harmless the Customer from and against any liabilities, costs, fees and/or damages that arise out of any Indemnifiable Claim.

      2. The Customer shall notify Thrivable of each Indemnifiable Claim as soon as the Customer is aware of its occurrence and deliver to Thrivable any and all non-privileged documents in the possession of, or otherwise known to, the Customer and related to the Indemnifiable Claim. Thrivable may control the defense and/or settlement of any Indemnifiable Claim, provided that, if applicable, Thrivable may not settle any such Indemnifiable Claim without the obtaining a release of the Customer from such Indemnifiable Claim. If the defense and/or settlement of any Indemnifiable Claim is compromised by the failure of the Customer to comply with the provisions of this §6.2, the Customer shall be liable, to the extent of such failure, for the expenses, costs and/or damages incurred by the Customer.

      3. Notwithstanding that set forth in §6.1, neither the Customer nor any third party may seek indemnification from Thrivable for any Indemnifiable Claim that asserts the Software Product infringes upon the intellectual property rights of a third party if (a) the Customer and/or any third party acting on behalf of either of the same failed to install or apply, or failed to have installed or applied, any Update or Upgrade and such assertion of infringement would be, or would have been, invalidated or could not have been brought, or would not have been successful, if such Update or Upgrade was installed or applied, (b) the Customer and/or any third party acting on behalf of either of the same used or uses the Software Product in a manner (1) inconsistent with the provisions of the Agreement and/or (2) contrary to its intended use and or purpose and/or (c) such assertion of infringement relates solely to Customer Data.

  • Limitations on Liability; Remedies.

      1. THE SOFTWARE PRODUCT IS PROVIDED BY THRIVABLE ON AN “AS-IS” BASIS.  ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED.  WITHOUT LIMITATION, THRIVABLE NEITHER REPRESENTS AND WARRANTS, NOR COVENANTS, THAT (a) THE OPERATION AND/OR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE SOFTWARE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE SOFTWARE PRODUCT ARE CAPABLE OF CORRECTION OR (d) THE SOFTWARE PRODUCT MEETS THE REQUIREMENTS OF ANY PARTY WHATSOEVER.  THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. 

      2. IN NO EVENT MAY EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER TO THRIVABLE IN THE CALENDAR YEAR IN WHICH THE CLAIM IS BROUGHT.  

      3. NEITHER PARTY HERETO MAY BE HELD LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.

      4. EACH PARTY HERETO ACKNOWLEDGES THAT THE OTHER PARTY HERETO HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN THIS §7 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.

      5. In the event an Indemnifiable Claim alleges Thrivable made a misrepresentation in clause (c) of §3.2, Thrivable may (a) procure for the Customer the right to use that portion, or those portions, of the Software Product contemplated in such Indemnifiable Claim, (b) provide a non-infringing substitute that would not give rise to an Indemnifiable Claim, and/or (c) terminate the Software Access as to that portion, or those portions, of the Software Product contemplated in such Indemnifiable Claim and provide a pro-rata refund of any prepaid fees.

  • Term & Termination.

    1. The Agreement shall remain in full force and effect during the Term unless and until it is terminated according to this §8. This Agreement will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Upon the effective date of each Renewal Term, Thrivable may increase the cost of the Software Product up to a maximum of five percent (5%) per year of each Renewal Term. If the cost of the Software Product increases, Thrivable will submit an invoice to Customer at least forty-five (45) days prior to the end of the then-current term. 

    2. Either Party may terminate the Agreement if the other Party materially breaches a covenant, representation or warranty made in the Agreement or materially fails to perform, or comply with, its obligations according to the Agreement, by notifying such other Party of such breach or material failure (as the case may be) and, if such breach is not cured within 30 days following receipt of notice thereof, notifying such other Party no less than 30 days prior to the effective date of such termination. For the avoidance of doubt, the Customer’s failure to pay any Amounts Due according to §2 shall constitute the Customer’s material failure to perform.

    3. Either Party may immediately terminate the Agreement by notifying such other Party of such termination if such other Party (a) files a petition in bankruptcy, (b) has filed against it a petition in bankruptcy and such petition is not dismissed within 90 days of being so filed, (c) becomes insolvent according to the Laws of the jurisdiction in which it was formed or (d) makes an assignment, or enters into some other arrangement, for the benefit of its creditors.

    4. Immediately upon the termination of the Agreement, (a) the Customer may have no further right, title or interest in the Software Product or any part thereof, including any license in either of the same, (b) neither Party may use the other Party’s Confidential Information and shall destroy or return, at the sole and absolute discretion of the Party disclosing such Confidential Information, all copies thereof and (c) each Party shall immediately pay to the other Party all amounts that are due and payable hereunder. Before termination, Customer may use the self-service export tools in the Software Product to perform a final export of Customer Data from the Software Product. Alternatively, Customer may request data export through a support ticket post-termination, provided that Thrivable may delete the Customer Data within 30 days of termination unless applicable law requires retention. 

    5. The provisions of §§1.3, 2.2, 4, 5, 7, 8.4, 8.5, and the provisions of §9 and §10, as and where applicable, shall survive any termination of the Agreement.

  • Defined Terms.

Aggregated Statistics” means data and information related to Customer’s use of the Software Product that is used by Thrivable in an aggregate and anonymized manner, including but not limited statistical and performance information related to the provision and operation of the Software Product.
Agreement” means the Quote, the Order Form and the Terms of Service entered into by and between Thrivable and the Customer.
Amounts Due” means any amounts due to Thrivable by the Customer, including but not limited to the subscription fees.
Contact Information” means (a) with respect to the Customer, the Customer representative designated in writing by Customer, or if none is designated, the information set forth in the Agreement beneath the signature of the Customer’s authorized representative(s) and (b) with respect to Thrivable, the information set forth in the Agreement beneath the signature of its authorized representative.
Customer” means the party with which Thrivable entered into the Agreement.
Customer Data” means all content, data and media provided to Thrivable or otherwise input into or using the Software Product by the Customer.
Indemnifiable Claim” means a third-party claim for damages resulting from any breach of the representations and warranties made by a Thrivable in §3.2.
Initial Term” means the number of years set forth in the Subscription Order Form and is the initial period during which the Agreement is to be in effect.
Invoice Period” means the 30-day period that follows the day Thrivable delivers the invoice contemplated in §2.2.
Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or any agency or instrumentality thereof and any arbitrator, court or tribunal of competent jurisdiction.
Party” means either Thrivable or the Customer.
Quote” means the quote for pricing of products and/or services prepared by Thrivable and delivered to Customer, as referenced in an Order Form.
Renewal Term” means (a) the period immediately following the Initial Term and (b) each period immediately following each period that follows the Initial Term.
Signature Date” means the date set forth on the Subscription Order Form under the Thrivable representative’s signature, and if no such date is listed, then the date shall be the same as the Subscription Start Date.
Software Access” means a limited, nonexclusive and nontransferable license for the Customer to access and use the Software Product in accordance with the Agreement.
Software Product” means the Thrivable market research heath care platform that allows users to complete surveys, usability studies, and focus groups, among other features, including any third-party software embedded therein, any Updates and any Upgrades.
Subscription Start Date” means the “Subscription Start Date” set forth in on the Subscription Order Form.
Term” means the Initial Term, any Renewal Terms (if applicable).
Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Software Product that performs comparable or improved functionality and which is not an Upgrade.
Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Software Product, including any changes to the Software Product that (a) substantially increase the speed, efficiency or ease of use of the Software Product or (b) add additional capabilities to, or otherwise improve the functions of, the Software Product.
Thrivable” means Thrivable, Inc., a Delaware corporation.
  • General Provisions.

    1. Each Party shall comply in all material respects with all applicable Laws in performing its obligations according to the Agreement.

    2. Any notice required or permitted to be delivered to either of the Parties according to the Agreement shall be (a) delivered according to such Party’s Contact Information and (b) deemed effective (1) upon receipt, when delivered personally or by courier, (2) the day delivered, if delivered by a reputable overnight delivery service, (3) upon delivery, if delivered via email and delivery is confirmed or (4) 48 hours after being deposited for delivery via certified or registered mail with postage prepaid.  Notice of any change to the Contact Information shall be given according to this §10.2.

    3. The Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of such parties with respect to such subject matter, whether written or verbal.  No provision of the Agreement may be construed against either Party by reason of the drafting or preparation thereof. The Agreement may be executed in two or more counterparts (including by electronic transmission), each of which shall be deemed an original and all of which together shall constitute a single instrument.

    4. Any term of the Agreement may be amended, waived, terminated or discharged only with the consent of both of the Parties.  The failure of either Party to insist upon the performance of any of the terms or conditions contained in the Agreement, or to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.

    5. If any provision of the Agreement is held to be unenforceable, the Parties shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each Party prior to such determination.  If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from the Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, the Agreement shall be enforceable in accordance with its terms.

    6. Neither Party may assign the Agreement, in whole or in part, by operation of Law or otherwise, without the other Party’s consent, such consent to not be unreasonably withheld, provided, however, that either Party may assign the Agreement without the other Party’s consent if such assignment is made as part of the purchase of all or substantially all of that Party’s business or as part of a merger, consolidation or reorganization there.  Any attempt to assign the Agreement other than in accordance with this §10.6 shall be null and void and of no legal force or effect.  The Agreement shall be binding upon and shall inure to the benefit of each party’s successors and permitted assigns.

    7. Except for payment obligations, neither Party may be held liable for its failure to perform hereunder or for any loss or damage due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.

    8. Neither the Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the Parties. For the avoidance of doubt, neither Party has the power or authority to, and no Party may, assume or create any obligation or responsibility on behalf of the other.