Terms & Policies
Terms of Service
Thrivable, Inc.
If a valid agreement exists between you (“Customer”) and Thrivable, Inc. (“Thrivable”) related to the subject matter hereof, those terms take precedence over these terms unless otherwise agreed to by the Parties.
Acceptance. Please read these Terms of Service (“TOS”) carefully before using thrivable.app (the “Website”) or the products or services offered by Thrivable. These TOS take effect when you click the “I Accept” button or checkbox presented with these TOS or when you use any of the Services, Materials or the Website, whichever occurs first. If you are agreeing to these TOS on behalf of Customer, you represent to Thrivable that you have legal authority to bind Customer.
Modifications to this Agreement. Thrivable may update or modify these TOS at any time by posting a revised version on this website (thrivable.app/terms) or otherwise providing notice to Customer. By continuing to use the Services after the effective date of any modifications to these TOS, Customer agrees to be bound by the modified terms.

Revised February 1, 2020
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  1. DEFINITIONS Capitalized terms used in this document are defined in the Glossary.
  2. USAGE RIGHTS AND RESTRICTIONS
    1. Grant of Rights. Thrivable grants to Customer a non-exclusive, non-transferable and worldwide right to use the Services and Materials solely for Customer’s use and not for the use of any third party. Permitted uses and restrictions of the Services apply to all Documentation associated with the Services.
    2. Authorized Users. Customer may permit Authorized Users to use the Services, Materials and Documentation of Thrivable. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the Services may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the Services. Customer is responsible for breaches of the Agreement caused by Authorized Users.
    3. Acceptable Use Policy. With respect to the Services, Customer will not:
      1. (i)  disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
      2. (ii)  transmit any content or data that is unlawful or infringes any intellectual property rights,
      3. (iii) circumvent or endanger its operation or security, or
      4. (iv) use the Services to do any of the following activities:
        1. solicit personally identifiable information from Panelists, such as names, phone numbers, email addresses, physical addresses, zip codes, usernames, or other unique identifiers,
        2. promote any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, or
        3. direct Panelists to do activities outside of the Services, such as visiting a website, signing up for another database, or doing any action in the real world.
    4. Verification of Use. Customer will monitor its own use of the Services and report any use in excess of the Usage Metrics and volume. Thrivable may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
    5. Suspension of Services. Thrivable may suspend or limit use of the Services if continued use may result in material harm to the Services or its users. Thrivable will promptly notify Customer of the suspension or limitation. Thrivable will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
    6. Third-Party Web Services. The Services may include integrations with web services made available by third parties (other than Thrivable’s Affiliates) that are accessed through the Services and subject to terms and conditions with those third parties. These third-party web services are not part of the Services and the Agreement does not apply to them.
    7. Mobile Access to the Services. If applicable, Authorized Users may access certain Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
  3. THRIVABLE RESPONSIBILITIES
    1. Provisioning. Thrivable provides access to the Services as described in the Agreement.
    2. Support. Thrivable provides support for the Services as referenced in the Order Form.
    3. Security. Thrivable uses reasonable security technologies in providing the Services. As a data processor, Thrivable will implement technical and organizational measures referenced in the Data Processing Agreement attached hereto as Exhibit A (“DPA”) to secure personal data processed in the Services in accordance with applicable data protection law.
    4. Modifications.
      1. The Services and Policies may be modified by Thrivable in its sole discretion. Thrivable will inform Customer of modifications by email, the support portal, release notes, Documentation or the Services. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Services, which Customer may use subject to the then-current Supplement and Documentation.
      2. If Customer establishes that a modification is not solely an enhancement and materially reduces the Services, Customer may terminate its subscriptions to the affected Services by providing written notice to Thrivable within thirty (30) days after receipt of Thrivable’s informational notice.
    5. Analyses. Thrivable or Thrivable’s Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Services and Consulting Services, as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Materials. Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Services and Consulting Services. Analyses may be used for the following purposes:
      1. product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new Thrivable products and services,
      2. improving resource allocation and support,
      3. internal demand planning,
      4. training and developing machine learning algorithms,
      5. improving product performance,
      6. verification of security and data integrity
      7. identification of industry trends and developments, creation of indices and anonymous benchmarking
  4. CUSTOMER AND PERSONAL DATA
    1. Customer Data. Customer is responsible for the Customer Data and entering it into the Services. Customer grants to Thrivable (including Thrivable’s Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Services.
    2. Personal Data. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
    3. Security. Customer will maintain reasonable security standards for its Authorized Users’ use of the Services. Customer will not conduct or authorize penetration tests of the Services without advance approval from Thrivable.
    4. Access to Customer Data.
      1. During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Thrivable and Customer will find a reasonable method to allow Customer access to Customer Data.
      2. Before the Subscription Term expires, if available, Customer may use Thrivable’s self-service export tools (as available) to perform a final export of Customer Data from the Services. Alternatively, Customer may request data export through a support ticket.
      3. At the end of the Agreement, Thrivable will delete the Customer Data remaining on servers hosting the Services unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
      4. In the event of third-party legal proceedings relating to the Customer Data, Thrivable will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
  5. FEES AND TAXES
    1. Fees and Payment. Customer will pay fees as stated in the Order Form. After prior written notice, Thrivable may suspend Customer’s use of the Services until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
    2. Taxes. Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than Thrivable’s income and payroll taxes. Customer must provide to Thrivable any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If Thrivable is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Thrivable for those amounts and indemnify Thrivable for any taxes and related costs paid or payable by Thrivable attributable to those taxes.
  6. TERM AND TERMINATION
    1. Term. The Subscription Term is as stated in the Order Form.
    2. Termination. A party may terminate the Agreement:
      1. upon thirty (30) day written notice of the other party’s material breach unless the breach is cured during that thirty (30) day period,
      2. as permitted under Sections 3.(d)(ii), 7(c)(ii), or 8(a)(iii) (with termination effective thirty (30) days after receipt of notice in each of these cases), or
      3. immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12(e).
    3. Refund and Payments. For termination by Customer or an 8.1(c) termination, Customer will be entitled to:
      1. a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
      2. a release from the obligation to pay fees due for periods after the effective date of termination.
    4. Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement:
      1. Customer’s right to use the Services and all Thrivable Confidential Information will end,
      2. Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and
      3. termination or expiration of the Agreement does not affect other agreements between the parties
    5. Survival. Sections 1, 5, 6(c), 6(d), 6(e), 8, 9, 10, 11, 12, and 13 will survive the expiration or termination of the Agreement.
  7. WARRANTIES
    1. Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
      1. in the case of Thrivable, the operation of Thrivable’s business as it relates to the Services, and
      2. in the case of Customer, the Customer Data and Customer’s use of the Services.
    2. Good Industry Practices. Thrivable warrants that it will provide the Services:
      1. in substantial conformance with the Documentation; and
      2. with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Services.
    3. Remedy. Customer’s sole and exclusive remedies and Thrivable’s entire liability for breach of the warranty under Section 7(b) will be:
      1. the re-performance of the deficient Services, and
      2. If Thrivable fails to re-perform, Customer may terminate its subscription for the affected Services. Any termination must occur within three (3) months of Thrivable’s failure to re-perform.
    4. Warranty Exclusions. The warranties in Sections 7(b) will not apply if:
      1. the Services are not used in accordance with the Agreement or Documentation,
      2. any non-conformity is caused by Customer, or by any product or service not provided by Thrivable, or
      3. the Services were provided for no fee.
    5. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER THRIVABLE NOR ITS SUBCONTRACTORS MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH ANY PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT, OR THAT THE OPERATION OF ANY PRODUCTS OR SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. CUSTOMER AGREES THAT IT IS NOT RELYING ON DELIVERY OF FUTURE FUNCTIONALITY, PUBLIC COMMENTS OR ADVERTISING OF THRIVABLE OR PRODUCT ROADMAPS IN OBTAINING SUBSCRIPTIONS FOR ANY SERVICES.
  8. THIRD PARTY CLAIMS
    1. Claims Brought Against Customer.
      1. Thrivable will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Services infringes or misappropriates a patent claim, copyright, or trade secret right. Thrivable will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Thrivable enters into) with respect to these claims.
      2. Thrivable’s obligations under Section 8(a) will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the Services in conjunction with any product or service not provided by Thrivable, or (iii) use of the Services provided for no fee.
      3. In the event a claim is made or likely to be made, Thrivable may (i) procure for Customer the right to continue using the Services under the terms of the Agreement, or (ii) replace or modify the Services to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Thrivable or Customer may terminate Customer’s subscription to the affected Services upon written notice to the other.
    2. Claims Brought Against Thrivable. Customer will defend Thrivable against claims brought against Thrivable and its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify Thrivable against all damages finally awarded against Thrivable and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
    3. Third Party Claim Procedure.
      1. The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
      2. The party that is obligated to defend a claim will have the right to fully control the defense.
      3. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
    4. Exclusive Remedy. The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
  9. LIMITATION OF LIABILITY
    1. Unlimited Liability. Neither party will exclude or limit its liability for damages resulting from:
      1. the parties’ obligations under Section 8(a)(i) and 8(b),
      2. unauthorized use or disclosure of Confidential Information,
      3. either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data,
      4. death or bodily injury arising from either party’s gross negligence or willful misconduct, or
      5. any failure by Customer to pay any fees due under the Agreement.
    2. Liability Cap. Subject to Sections 9(a) and 9(c), the maximum aggregate liability of either party (or its respective Affiliates or Thrivable’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve (12) month period will not exceed the annual subscription fees paid for the applicable Services directly causing the damage for that twelve (12) month period. Any “twelve (12) month period” commences on the Subscription Term start date or any of its yearly anniversaries.
    3. Exclusion of Damages. Subject to Section 9(a):
      1. neither party (nor its respective Affiliates or Thrivable’s subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
      2. Thrivable will not be liable for any damages caused by any Services provided for no fee.
    4. Risk Allocation. The Agreement allocates the risks between Thrivable and Customer. The fees for the Services and Consulting Services reflect this allocation of risk and limitations of liability.
  10. INTELLECTUAL PROPERTY RIGHTS
    1. Thrivable Ownership. Thrivable, Thrivable’s Affiliates or licensors own all intellectual property rights in and related to the Services, Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Thrivable and its licensors.
    2. Customer Ownership. Customer retains all rights in and related to the Customer Data. Thrivable may use Customer-provided trademarks solely to provide and support the Services.
    3. Data License. Customer hereby grants to Thrivable, a non-exclusive, royalty-free, fully paid-up, sublicensable, non-transferable, irrevocable, non-terminable, perpetual license to any and all of the Data, to use for any of its internal business purposes and, in the case of Profiling Data, for any commercial purpose.
    4. Profiling Data is non-personally identifiable information used for categorizing the characteristics, conditions, and demographics of individuals within the Thrivable database for research purposes. Profiling Data must only include the following information:
      1. physical information, such as age, height, weight, and other physical characteristics
      2. demographic information, such as age, sex, education level, income level, marital status, occupation, religion, or other attributes commonly described as demographic information
      3. the presence of any health conditions
      4. how health conditions are being treated, including medications, medical devices, and behaviors (e.g. dietary and exercise habits)
    5. Profiling Data must not include any of Customer's Confidential Information.
    6. Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Thrivable and its Affiliates or licensors, any rights, or any claims of any rights, in any Services, Materials, Documentation, or Consulting Services.
  11. CONFIDENTIALITY
    1. Use of Confidential Information,
      1. The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Customer will not disclose the Agreement or the pricing to any third party.
      2. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.
      3. In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
    2. Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
      1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
      2. is generally available to the public without breach of the Agreement by the receiving party,
      3. at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
      4. the disclosing party agrees in writing is free of confidentiality restrictions.
    3. Publicity. Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that Thrivable may use Customer’s name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Thrivable’s marketing efforts (including reference calls and stories, press testimonials, and site visits). Customer agrees that Thrivable may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Thrivable.
  12. ADVERSE EVENT REPORTING. Customer and Thrivable shall adhere, and shall require that their employees and Affiliates, adhere, to all requirements of applicable law and regulations that relate to the reporting and investigation of any adverse event. In the event that either party becomes aware of any adverse event relating to the Services, Customer Data, or any product of Customer, the party shall timely inform the other party of any such adverse event. Customer shall be responsible thereafter to report such adverse event to the appropriate governmental authorities in accordance with all applicable governmental regulations. Thrivable shall have no obligation to report or monitor for any adverse events with respect to the Services provided.
  13. MISCELLANEOUS
    1. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
    2. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
    3. Electronic Signature. Electronic signatures that comply with applicable law are deemed original signatures.
    4. Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by Thrivable relating to the operation or support of the Services and those under Sections 3(d) and 5(a) may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
    5. Assignment. Without Thrivable’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Thrivable may assign the Agreement to Thrivable Affiliates.
    6. Subcontracting. Thrivable may subcontract parts of the Services or Consulting Services to third parties. Thrivable is responsible for breaches of the Agreement caused by its subcontractors.
    7. Relationship of the Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
    8. Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
    9. Governing Law. The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the State of Ohio, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Cleveland, Ohio.
    10. Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Thrivable and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3(d). An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Thrivable accepts or does not otherwise reject the purchase order.
    11. Data Processing Agreement. Where Customer is processing personal data using the Services, the DPA shall govern the processing of such personal data.
Glossary
  1. “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
  2. “Agreement” means an Order Form and documents incorporated into an Order Form.
  3. “Authorized User” means any individual to whom Customer grants access authorization to use the Services that is an employee, agent, contractor or representative of
    1. Customer
    2. Customer’s Affiliates, and/or
    3. Customer’s and Customer’s Affiliates’ Business Partners.
  4. “Business Partner” means a legal entity that requires use of the Services in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
  5. “Confidential Information” means
    1. with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
    2. with respect to Thrivable: (i) the Services, Documentation, Materials and analyses under Section 3.5, and (ii) information regarding Thrivable research and development, product offerings, pricing and availability.
    3. Confidential Information of either Thrivable or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure
  6. “Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by Thrivable’s employees or subcontractors as described in any Order Form and which are governed by the Supplement for Consulting Services or similar agreement.
  7. “Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of the Services or that Customer derives from its use of and stores in the Services (e.g. Customer-specific reports). Customer Data and its derivatives will not include Thrivable’s Confidential Information.
  8. “Documentation” means Thrivable’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Services which are made available to Customer with the Services.
  9. “Materials” mean any materials provided or developed by Thrivable (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. Materials do not include the Customer Data, Customer Confidential Information or the Services.
  10. “Order Form” means the ordering document for the Services that references the TOS.
  11. “Panelists” means the people that participate in research activities, such as surveys nad focus groups.
  12. “Policies” means the operational guidelines and policies applied by Thrivable to provide and support the Services as incorporated in an Order Form.
  13. “Services” means any distinct, subscription-based, hosted, supported and operated on- demand solution provided by Thrivable under an Order Form.
  14. “Subscription Term” means the term of the Services subscription identified in the applicable Order Form, including all renewals.
  15. “Supplement” means as applicable, the supplemental terms and conditions that apply to the Services, if any, and that are incorporated in an Order Form.
  16. “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for the Services as set forth in an Order Form.

Exhibit A
Data Processing Agreement
PERSONAL DATA PROCESSING AGREEMENT FOR THRIVABLE SERVICESS
 This Data Processing Addendum (“DPA”) is entered into between (1) Customer; and (2) Thrivable.
  1. BACKGROUND
    1. Purpose and Application. This document is incorporated into the Agreement and forms part of a written (including in electronic form) contract between Thrivable and Customer. This DPA applies to Personal Data processed by Thrivable and its Subprocessors in connection with its provision of the Services. This DPA does not apply to non-production environments of the Services if such environments are made available by Thrivable, and Customer shall not store Personal Data in such environments.
    2. Structure. Appendices 1 and 2 are incorporated into and form part of this DPA. They set out the agreed subject-matter, the nature and purpose of the processing, the type of Personal Data, categories of data subjects and the applicable technical and organizational measures.
    3. GDPR. Thrivable and Customer agree that it is each party’s responsibility to review and adopt requirements imposed on Controllers and Processors by the General Data Protection Regulation 2016/679 (“GDPR”), in particular with regards to Articles 28 and 32 to 36 of the GDPR, if and to the extent applicable to Personal Data of Customer/Controllers that is processed under the DPA. For illustration purposes, Appendix 3 lists the relevant GDPR requirements and the corresponding sections in this DPA.
    4. Governance. Thrivable acts as a Processor and Customer and those entities that it permits to use the Services act as Controllers under the DPA. Customer acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of Personal Data in accordance with this DPA, including, where applicable approval by Controllers to use Thrivable as a Processor. Where authorizations, consent, instructions or permissions are provided by Customer these are provided not only on behalf of the Customer but also on behalf of any other Controller using the Services. Where Thrivable informs or gives notice to Customer, such information or notice is deemed received by those Controllers permitted by Customer to use the Services and it is Customer’s responsibility to forward such information and notices to the relevant Controllers.
  2. SECURITY OF PROCESSING
    1. Appropriate Technical and Organizational Measures. Thrivable has implemented and will apply the technical and organizational measures set forth in Appendix 2. Customer has reviewed such measures and agrees that as to the Services selected by Customer in the Order Form the measures are appropriate aking into account the state of the art, the costs of implementation, nature, scope, context and purposes of the processing of Personal Data.
    2. Changes. Thrivable applies the technical and organizational measures set forth in Appendix 2 to Thrivable’ entire customer base hosted out of the same Data Center and receiving the same Services. Thrivable may change the measures set out in Appendix 2 at any time without notice so long as it maintains a comparable or better level of security. Individual measures may be replaced by new measures that serve the same purpose without diminishing the security level protecting Personal Data.
  3. THRIVABLE OBLIGATIONS
    1. Instructions from Customer. Thrivable will process Personal Data only in accordance with documented instructions from Customer. The Agreement (including this DPA) constitutes such documented initial instructions and each use of the Services then constitutes further instructions. Thrivable will use reasonable efforts to follow any other Customer instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the Services. If any of the before-mentioned exceptions apply, or Thrivable otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Thrivable will immediately notify Customer (email permitted).
    2. Processing on Legal Requirement. Thrivable may also process Personal Data where required to do so by applicable law. In such a case, Thrivable shall inform Customer of that legal requirement before processing unless that law prohibits such information on important grounds of public interest.
    3. Personnel. To process Personal Data, Thrivable and its Subprocessors shall only grant access to authorized personnel who have committed themselves to confidentiality. Thrivable and its Subprocessors will regularly train personnel having access to Personal Data in applicable data security and data privacy measures.
    4. Cooperation. At Customer’s request, Thrivable will reasonably cooperate with Customer and Controllers in dealing with requests from Data Subjects or regulatory authorities regarding Thrivable’s processing of Personal Data or any Personal Data Breach. Thrivable shall notify the Customer as soon as reasonably practical about any request it has received from a Data Subject in relation to the Personal Data processing, without itself responding to such request without Customer’s further instructions, if applicable. Thrivable shall provide functionality that supports Customer’s ability to correct or remove Personal Data from the Services, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, Thrivable will correct or remove any Personal Data, or restrict its processing, in accordance with the Customer’s instruction and Data Protection Law.
    5. Personal Data Breach Notification. Thrivable will notify Customer without undue delay after becoming aware of any Personal Data Breach and provide reasonable information in its possession to assist Customer to meet Customer’s obligations to report a Personal Data Breach as required under Data Protection Law. Thrivable may provide such information in phases as it becomes available. Such notification shall not be interpreted or construed as an admission of fault or liability by Thrivable.
    6. Data Protection Impact Assessment. If, pursuant to Data Protection Law, Customer (or its Controllers) are required to perform a data protection impact assessment or prior consultation with a regulator, at Customer’s request, Thrivable will provide such documents as are generally available for the Services (for example, this DPA, the Agreement, audit reports or certifications). Any additional assistance shall be mutually agreed between the Parties.
  4. DATA EXPORT AND DELETION
    1. Export and Retrieval by Customer. During the Subscription Term and subject to the Agreement, Customer can access its Personal Data at any time. Customer may export and retrieve its Personal Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Thrivable and Customer will find a reasonable method to allow Customer access to Personal Data.
    2. Deletion. Before the Subscription Term expires, Customer may use Thrivable’s self-service export tools (as available) to perform a final export of Personal Data from the Services (which shall constitute a “return” of Personal Data). Before the Subscription Term expires, Customer is required to use Thrivable’s self-service export tools (as available) to perform a final export of Personal Data from the Services (which shall constitute a “return” of Personal Data) and shall delete Personal Data from the Services using the self-service tools. If Customer is unable to download and/or delete Personal Data due to technical limitations, then Customer may request that Thrivable deletes the Personal Data remaining on the Services.
  5. CERTIFICATIONS AND AUDITS
    1. Customer Audit. Customer or its independent third party auditor reasonably acceptable to Thrivable (which shall not include any third party auditors who are either a competitor of Thrivable or not suitably qualified or independent) may audit Thrivable’s control environment and security practices relevant to Personal Data processed by Thrivable only if:
      1. Thrivable has not provided sufficient evidence of its compliance with the technical and organizational measures that protect the production systems of the Services through providing either: (i) a certification as to compliance with ISO 27001 or other standards (scope as defined in the certificate); or (ii) a valid ISAE3402 and/or ISAE3000 or other SOC1-3 attestation report. Upon Customer’s request audit reports or ISO certifications are available through the third-party auditor or Thrivable;
      2. A Personal Data Breach has occurred;
      3. An audit is formally requested by Customer’s data protection authority; or
      4. Mandatory Data Protection Law provides Customer with a direct audit right and provided that Customer shall only audit once in any twelve (12) month period unless mandatory Data Protection Law requires more frequent audits.
    2. Other Controller Audit. Any other Controller may audit Thrivable’s control environment and security practices relevant to Personal Data processed by Thrivable in line with Section 5.1 only if any of the cases set out in Section 5.1 applies to such other Controller. Such audit must be undertaken through and by Customer as set out in Section 5.1 unless the audit must be undertaken by the other Controller itself under Data Protection Law. If several Controllers whose Personal Data is processed by Thrivable on the basis of the Agreement require an audit, Customer shall use all reasonable means to combine the audits and to avoid multiple audits.
    3. Scope of Audit. Customer shall provide at least sixty days advance notice of any audit unless mandatory Data Protection Law or a competent data protection authority requires shorter notice. The frequency and scope of any audits shall be mutually agreed between the parties acting reasonably and in good faith. Customer audits shall be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. Customer shall provide the results of any audit to Thrivable.
    4. Cost of Audits. Customer shall bear the costs of any audit unless such audit reveals a material breach by Thrivable of this DPA, then Thrivable shall bear its own expenses of an audit. If an audit determines that Thrivable has breached its obligations under the DPA, Thrivable will promptly remedy the breach at its own cost.
  6. SUBPROCESSORS
    1. Permitted Use. Thrivable is granted a general authorization to subcontract the processing of Personal Data to Subprocessors, provided that:
      1. Thrivable or Thrivable on its behalf shall engage Subprocessors under a written (including in electronic form) contract consistent with the terms of this DPA in relation to the Subprocessor’s processing of Personal Data. Thrivable shall be liable for any breaches by the Subprocessor in accordance with the terms of this Agreement;
      2. Thrivable will evaluate the security, privacy and confidentiality practices of a Subprocessor prior to selection to establish that it is capable of providing the level of protection of Personal Data required by this DPA; and
      3. Thrivable’s list of Subprocessors in place on the effective date of the Agreement is published by Thrivable. Upon request, Thrivable will make the list of Subprocessors available to Customer including the name, address and role of each Subprocessor Thrivable uses to provide the Services.
    2. New Subprocessors. Thrivable’s use of Subprocessors is at its discretion, provided that:
      1. Thrivable will inform Customer in advance (by email or by posting within the Services) of any intended additions or replacements to the list of Subprocessors including name and role of the new Subprocessor; and
      2. Customer may object to such changes as set out in Section 6.3.
    3. Objections to New Subprocessors.
      1. If Customer has a legitimate reason under Data Protection Law to object to the new Subprocessors’ processing of Personal Data, Customer may terminate the Agreement (limited to the Services for which the new Subprocessor is intended to be used) on written notice to Thrivable. Such termination shall take effect at the time determined by the Customer which shall be no later than thirty days from the date of Thrivable’s notice to Customer informing Customer of the new Subprocessor. If Customer does not terminate within this thirty day period, Customer is deemed to have accepted the new Subprocessor.
      2. Within the thirty (30) day period from the date of Thrivable’s notice to Customer informing Customer of the new Subprocessor, Customer may request that the parties come together in good faith to discuss a resolution to the objection. Such discussions shall not extend the period for termination and do not affect Thrivable’ right to use the new Subprocessor(s) after the thirty (30) day period.
      3. Any termination under this Section 6.3 shall be deemed to be without fault by either party and shall be subject to the terms of the Agreement.
    4. Emergency Replacement. Thrivable may replace a Subprocessor without advance notice where the reason for the change is outside of Thrivable’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, Thrivable will inform Customer of the replacement Subprocessor as soon as possible following its appointment. Section 6.3 applies accordingly.
    5. Thrivable Affiliates. Thrivable may engage any of its Affiliates to process Personal Data without seeking any prior approval from Customer.
  7. INTERNATIONAL PROCESSING
    1. Conditions for International Processing. Thrivable shall be entitled to process Personal Data, including by using Subprocessors, in accordance with this DPA outside the country in which the Customer is located as permitted under Data Protection Law.
    2. Standard Contractual Clauses. Where (i) Personal Data of an EEA or Swiss based Controller is processed in a country outside the EEA, Switzerland and any country, organization or territory acknowledged by the European Union as a safe country with an adequate level of data protection under Art. 45 GDPR, or where (ii) Personal Data of another Controller is processed internationally and such international processing requires an adequacy means under the laws of the country of the Controller and the required adequacy means can be met by entering into Standard Contractual Clauses, then Thrivable and Customer hereby enter into the Standard Contractual Clauses.
    3. Relation of the Standard Contractual Clauses to the Agreement. Nothing in the Agreement shall be construed to prevail over any conflicting clause of the Standard Contractual Clauses. For the avoidance of doubt, where this DPA further specifies audit and subprocessor rules in sections 5 and 6, such specifications also apply in relation to the Standard Contractual Clauses.
    4. Governing Law of the Standard Contractual Clauses. The Standard Contractual Clauses shall be governed by the laws of Ireland.
  8. DOCUMENTATION; RECORDS OF PROCESSING Each party is responsible for its compliance with its documentation requirements, in particular maintaining records of processing where required under Data Protection Law. Each party shall reasonably assist the other party in its documentation requirements, including providing the information the other party needs from it in a manner reasonably requested by the other party (such as using an electronic system), in order to enable the other party to comply with any obligations relating to maintaining records of processing.
  9. DEFINITIONS Capitalized terms not defined herein will have the meanings given to them in the Agreement.
    1. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; for the purposes of this DPA, where Customer acts as processor for another controller, it shall in relation to Thrivable be deemed as additional and independent Controller with the respective controller rights and obligations under this DPA.
    2. “Data Center” means the location where the production instance of the Services is hosted for the Customer in the region agreed in an Order Form.
    3. “Data Protection Law” means the applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Personal Data under the Agreement (and includes, as far as it concerns the relationship between the parties regarding the processing of Personal Data by Thrivable on behalf of Customer, the GDPR as a minimum standard, irrespective of whether the Personal Data is subject to GDPR or not).
    4. “Data Subject” means an identified or identifiable natural person as defined by Data Protection Law.
    5. “EEA” means the European Economic Area, namely the European Union Member States along with Iceland, Liechtenstein and Norway.
    6. “Personal Data” means any information relating to a Data Subject which is protected under Data Protection Law. For the purposes of the DPA, it includes only personal data which is (i) entered by Customer or its Authorized Users into or derived from their use of the Services, or (ii) supplied to or accessed by Thrivable or its Subprocessors in order to provide support under the Agreement. Personal Data is a sub-set of Customer Data (as defined under the Agreement).
    7. “Personal Data Breach” means a confirmed (1) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Personal Data or (2) similar incident involving Personal Data, in each case for which a Controller is required under Data Protection Law to provide notice to competent data protection authorities or Data Subjects.
    8. “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller, be it directly as processor of a controller or indirectly as subprocessor of a processor which processes personal data on behalf of the controller.
    9. “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the (Standard Contractual Clauses (processors)) or any subsequent version thereof published by the European Commission (which will automatically apply). The Standard Contractual Clauses current as of the effective date of the Agreement are attached hereto as Appendix 4.
    10. “Subprocessor” means third parties engaged by Thrivable in connection with the Services and which process Personal Data in accordance with this DPA.