THRIVE STANDARD TERMS AND CONDITIONS

Last Updated: August 4, 2023

These Standard Terms and Conditions (“Terms”) are entered into by Thrive TRM (“Thrive”) and the entity (“Customer”) identified on one or more mutually agreed and executed order forms referencing these Terms and setting forth the Services to be provided and any applicable additional terms with respect to the purchase or provision of such Services (each an “Order”, and all Orders together with these Terms, the “Agreement”). Thrive and Customer are each referred to herein individually as a “Party” and collectively as the “Parties”. By executing an Order the Parties agree to be bound by these Terms. 

1. DEFINITIONS
   1. “Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the Services that are provided by Thrive.
   2. “Extension” means Thrive’s proprietary web browser extension for accessing and using the Hosted Service as may be provided by Thrive.
   3. “Hosted Service” means Thrive’s proprietary software platform that are identified as a “Hosted Service” on an Order which will be made available to Customer under this Agreement on a software-as-a-service basis. 
   4. “Professional Services” means the implementation, training, dashboard customizations or configurations, data collection and inputting or other professional services, if any, identified in an Order.
   5. “Services” means the Hosted Service, Support Services (as defined below), and Professional Services, collectively, to be provided under this Agreement.
   6. “Submitted Data” means any data submitted to the Hosted Service by or for Customer, excluding any Thrive Data.
   7. “Thrive Data” means information obtained by Thrive from publicly available sources or its third party providers and made available to Customer through the Services.
2. HOSTED SERVICES AND EXTENSION
   1. Hosted Services. Subject to Customer’s ongoing compliance with the terms of this Agreement (including any additional terms set forth in an Order and timely payment of all applicable Fees), Thrive hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right during the applicable Order Term (as defined below) to allow those individuals who have been invited  or authorized to access and use the Hosted Service by or on behalf of Customer (“Authorized Users”) to access and use the Hosted Service, solely for Customer’s internal business purposes in connection with performing and storing and processing information related to personnel searches (the “Authorized Purpose”).  Customer recognizes that excess usage beyond the authorized scope of the applicable Order will result in additional fees charged by Thrive as determined in accordance with Section 5.1.  Customer will promptly notify Thrive in the event that Customer undergoes any changes that could lead to a material increase in its use of the Hosted Services (including as a result of any merger, acquisition or similar event affecting Customer).
   2. License Grant. Subject to Customer having a then in effect Order for Hosted Services and Customer’s ongoing compliance with the terms of this Agreement (including any additional limitations or restrictions set forth in the applicable Order and timely payment of all applicable Fees), Thrive hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Order Term to: (i) install the Extension on devices owned or controlled by Customer or Authorized Users; (ii) permit Authorized Users to run, access, or otherwise interact with the Extension as installed, in accordance with any associated Documentation solely in connection with the use of the Hosted Services for the Authorized Purpose; and (iii) make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder and use any Documentation in connection with Customer’s use of the Hosted Services and Extension. 
   3. Services Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Hosted Services or the Extension, or reconstruct, or discover, any hidden or non-public elements of the Hosted Service, Extension, or results provided in connection with Professional Services (except to the extent expressly permitted by applicable law notwithstanding this restriction); (ii) translate, adapt, or modify the Hosted Service, Extension, or Documentation, any results of any Professional Services, or any portion of any of the foregoing; (iii) write or develop any program based upon the Hosted Service, the Extension or any portion of any of the foregoing, or otherwise use the Services, Extension, or Documentation in any manner for the purpose of developing, distributing or making accessible products or services that compete with the Services or the Extension; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any of the Services or Extension or any rights to any of the foregoing; (v) export, sell or distribute any content or portion of the Services, Extension, or Documentation or use the Services, Extension, or Documentation for the benefit of any third persons, except that, to the extent Customer performs or conducts executive personnel searches for its customers or clients, Customer may use the Services to perform such searches on behalf of its clients and customers; (vi) use the Services, Extension, or Documentation for any purpose other than the Authorized Purpose; (vii) permit the Hosted Services, Extension, or Documentation to be accessed or used by any persons other than Authorized Users; (viii) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is no authorized to transmit, either to or from the Hosted Services; (ix) alter or remove any trademarks or proprietary notices contained in or on the Hosted Service, Extension, or Documentation; (x) circumvent or otherwise interfere with any authentication or security measures of the Hosted Services or Extension or otherwise interfere with or disrupt the integrity or performance of any of the foregoing; or (xi) otherwise use the Services or any Thrive IP (as defined below) except as expressly permitted hereunder,  described in Documentation, or set forth in separate terms or agreements governing your use of the Hosted Services.  Customer acknowledges that Thrive may, but is under no obligation to monitor or  audit Customer’s and Authorized Users’ use of the Hosted Service, including the number of Authorized Users.  Thrive may suspend Customer’s access to the Hosted Services for any period during which Customer is, or Thrive has a reasonable basis for alleging Customer is in noncompliance with the foregoing.
   4. Service Levels and Support Services.  Subject to Customer’s compliance with this Agreement, Thrive will make the Hosted Services available hereunder in accordance with, and provide the support services with respect to the applicable Hosted Services (“Support Services”) set forth in the Service Level Agreement attached hereto as Exhibit A (the “SLA”), as may be modified from time to time, on a going forward basis by Thrive; provided that no such modification will diminish or adversely effect, in any material manner, the rights of Customer hereunder. Customer acknowledges and agrees that Customer’s sole and exclusive remedy, and Thrive’s sole and exclusive liability for any failure of Thrive to achieve the uptime commitments and services response times set forth in the SLA shall be those remedies set forth in the SLA. 
3. PROFESSIONAL SERVICES. Subject to Customer’s timely payment of all applicable Fees, Thrive will use commercially reasonable efforts to perform for Customer the Professional Services, if any, set forth in the Order.  Thrive will own and retain all right, title and interest, including all intellectual property and proprietary rights, in and to any work product or deliverables created in connection with the Professional Services. Nothing in this Agreement shall be understood to prevent Thrive from developing similar work product or deliverables for other customers. Customer will provide all access, information, and assistance reasonably requested by Thrive in connection with Thrive’s provisions of the Professional Services, and Thrive will not be liable for any delay in performance under this agreement to the extent such delay is caused by Customer’s failure to provide such access, information, or assistance. 
4. CUSTOMER OBLIGATIONS
   1. Customer Obligations. Customer will ensure that all information about each Authorized User provided to Thrive is accurate and complete and will maintain that information as accurate and complete throughout the term of this Agreement.  Customer is solely responsible for: (i) all use of the Hosted Services by each Authorized User; (ii) ensuring compliance by each Authorized User with the applicable terms of this Agreement; and (iii) any acts or omissions, including via any unauthorized access to or use of the Hosted Services or Extension, using an account associated with a shared User ID. Customer will ensure the security and confidentiality of all user credentials associated with accounts and will prevent unauthorized access to or use of the Hosted Services through any user credentials.  Customer will notify Thrive promptly of any such unauthorized access or use of the Hosted Services or Extension that it becomes aware of or if any user credentials are lost, stolen, or otherwise compromised. 
   2. Third-Party Components. Customer is solely responsible for maintaining any internet services and connectivity necessary to access and use the Hosted Services (“Third-Party Components”).  In particular, Customer acknowledges that a high-speed Internet connection is required at all times in order to use the Hosted Services properly, and Customer agrees that it will maintain such a high-speed connection throughout the Term and that Thrive may not be obligated to provide certain Services to the extent that such high-speed connection is not in operation.  Customer acknowledges that the Hosted Services may integrate with third-party solutions and services, and Thrive shall have no warranty or other obligation with respect to such third-party solutions and services or Customer’s use thereof.
5. FEES; PAYMENT
   1. Fees. During the Term, Customer will pay Thrive all fees of the type and amount and in accordance with the applicable payment schedule set forth in the Order (“Fees”), which may include, without limitation, fees for the Hosted Services and Extension (“Subscription Fees”), and fees for Professional Services (“Professional Services Fees”). If Customer’s actual use of the Services exceeds the license or service units, or the number of Authorized Users at any given time exceeds the number of Authorized Users for which Subscription Fees have been paid under the applicable Order, then Customer will pay for such additional use at the rates for excess usage set forth in the applicable Order, or, if no such rates are provided, Thrive’s then-current standard rates for the remainder of the applicable Order Term. If fees for Professional Services are not set forth on the Order, such fees will be paid for services to be rendered at Thrive’s then prevailing time and materials rates. Customer agrees to promptly reimburse Thrive upon invoice for any actual, out-of-pocket travel and lodging expenses incurred by Thrive in connection with any on-site Professional Services set forth on the Order.  Except as otherwise expressly set forth in the Order, all Fees are non-cancellable, non-refundable, and non-recoupable.  Thrive reserves the right to change Fees by providing notice to Customer at least sixty (60) days prior to the start of any Renewal Term.  Thrive agrees that any increase in Fees will not exceed the greater of 5% or the increase in the Consumer Price Index (for All Items for All Urban Consumers (CPI-U): U.S. City Average (1982-1984=100) as published monthly by the Bureau of Labor Statistics) during the immediately preceding twelve (12) month period.  Such Fee changes will become effective upon the start of the next Renewal Term following such notice from Thrive.
   2. Payment Terms. Unless otherwise set forth in the applicable Order, all Subscription Fees will be billed annually in advance, all Professional Services Fees will be billed in advance, upon execution of the applicable Order, and all invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff.  Interest accrues on late payments from the due date at the lesser of 1.5% per month or the highest rate allowed by law.
   3. Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Thrive’s net income). 
6. PROPRIETARY RIGHTS.  Customer acknowledges that Thrive owns and retains all rights, title and interest, including all intellectual property rights, in and to the Extension, Documentation and Services, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining thereto or included therein (“Thrive IP”), and nothing in this Agreement shall preclude or restrict Thrive from using or exploiting any concepts, ideas, techniques or know-how of or related to the Thrive IP or otherwise arising in connection with Thrive’s provision of the Services.  Other than as expressly set forth in this Agreement, no license or other rights in or to the Thrive IP are granted to Customer and all such rights are hereby expressly reserved.  
7. TERM AND TERMINATION
   1. Term. This Agreement will start on the effective date of the first Order between the Parties and, unless terminated earlier in accordance with this Agreement, will continue until there are no Orders in effect between the Parties, the (“Term”).  Each Order shall survive for the term identified on that Order (the “Initial Term” with respect to that Order). Except with respect to any Professional Services (unless otherwise stated in the applicable Order), upon expiration of the Initial Term, each Order will automatically renew for subsequent and consecutive periods of the same duration as the Initial Term (each such period, a “Renewal Term” with respect to that Order and all Renewal Terms together with the Initial Term, the “Order Term” with respect to that Order). Either Party may terminate an Order effective upon the expiration of the then current Initial Term or Renewal Term by providing notice of such termination at least 90 days prior to the end of the then current Initial Term or Renewal Term. 
   2. Termination. Either Party may terminate this Agreement by written notice if the other Party is in material breach of this Agreement, where such breach is not cured within 30 days after written notice of such breach.  If Customer fails to pay within 15 days after written notice of nonpayment of any amounts owed to Thrive, such nonpayment shall be deemed a material breach. For the avoidance of doubt, Customer’s noncompliance with Section 2 is deemed a material breach of this Agreement.  This Agreement may be terminated by either Party with immediate effect if the other Party: (i) ceases to carry on its business; (ii) is appointed a receiver or similar officer for its business, property, affairs or revenues and such proceedings continue for 45 days; (iii) becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (iv) has proceedings under bankruptcy or insolvency laws are commenced by or against it that are not dismissed within 45 days.
   3. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) Customer’s access to the Services, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Thrive’s request destroy and certify the destruction of any tangible embodiments of Thrive’s Confidential Information (as defined below), including all copies of the Extension.  The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.3, 4 (with respect to Fee amounts due), 6, 8, 9, 10, and 11.  Without limiting Thrive’s rights hereunder, Thrive will deliver to Customer an electronic copy of the then-most recent back-up of the Submitted Data no later than thirty (30) days after the effective date of any expiration or termination of this Agreement, provided that Customer pays all reasonable expenses incurred by Thrive in providing such copy.  This copy will be provided in csv format, or other format mutually agreed upon by the Parties in writing.

8. CONFIDENTIALITY; DATA
   1. Definition. “Confidential Information” means: (i) any information disclosed, directly or indirectly, by or on behalf of one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself.  Without limiting the foregoing, the Extension, Documentation, and Thrive IP are the Confidential Information of Thrive, and the terms (but not the existence) of this Agreement will be kept confidential as each other Party’s Confidential Information. However, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of the Receiving Party; (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owned to the Disclosing Party.
   2. Use; Maintenance. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information so long as the Receiving Party has given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential Information (if permitted by applicable law). Each Party will take at least reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party, and will take at least those measures that it takes to protect its own most highly confidential information.  
   3. Submitted Data and Thrive Data. As between Thrive and Customer, Customer retains all rights, title, and interest in and to the Submitted Data.  If Thrive is processing and storing Submitted Data, Thrive shall use at least those measures set forth the Data Processing Addendum located at https://thrivetrm.com/wp-content/uploads/2024/02/Thrive-Customer-DPA-.docx.pdf (the “DPA”) as may be updated by Thrive on a going forward basis. Thrive may use Submitted Data as necessary to make available the Hosted Services and perform its obligations hereunder.  Thrive may use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (i) aggregated non-personally identifiable information related to any usage of the Hosted Services; and (ii) suggestions, requests and feedback provided by or on behalf of Customer regarding the Services, Extension or any other Thrive IP.  Customer may only use Thrive Data for the Authorized Purpose and for Customer’s internal business purposes; provided that, in no event may Customer use Thrive Data for the purpose of competing with Thrive or export, sell, resell, provide access to, or distribute any Thrive Data for the benefit of any third persons, except that, to the extent Customer performs or conducts executive personnel searches for its customers or clients, Customer may use Thrive Data to perform such searches on behalf of its clients and customers.
9. INDEMNIFICATION
   1. By Thrive. Thrive shall: (i) defend, or, at its option, settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use of the Hosted Services as authorized in this Agreement constitutes a direct infringement of copyrights, patents, trademarks, or trade secrets of any third party (“Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claims defended by Thrive; provided that Customer provides Thrive (I) prompt written notice of, (II) sole control over the defense and settlement of, and (III) all information and assistance reasonably requested by Thrive in connection with the defense or settlement of, any such Claim.  If any Claim is brought or threatened, Thrive may, at its sole option and expense: (w) procure for Customer the right to continue to use the Hosted Services; (x) modify the Hosted Services to make them non-infringing; (y) replace the affected aspect of the Hosted Services with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement.  Notwithstanding the foregoing, Thrive will have no liability to Customer: (1) for any use of the Hosted Services in combination with software, products or services not provided by Thrive; to the extent that the Hosted Services would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Hosted Services in accordance with this Agreement; or (3) for any Claims related to Submitted Data.
   2. Disclaimer. SECTION 9.1 STATES THE ENTIRE LIABILITY OF THRIVE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THRIVE, THE SERVICES, EXTENSION, OR OTHER THRIVE IP, OR ANY PART THEREOF.
   3. By Customer. Notwithstanding anything to the contrary in Section 9.1, Customer shall defend or, at its option, settle, and indemnify Thrive with respect to any claim, suit, action, or proceeding brought against Thrive by a third party alleging (A) that the use by or on behalf of Thrive of the Submitted Data in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws, or (B) any other violation of Customer’s representations and warranties in this Agreement. Customer will pay all damages finally awarded against Thrive (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim.  Thrive shall provide Customer with: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. 
10. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY
    1. Mutual Warranties. Each Party represents and warrants that: (i) it has all necessary rights and authority to enter into this and perform under this Agreement; and (ii) it will comply with applicable law at all times in connection with its performance under this Agreement. 
    2. Customer Warranties.  Customer represents and warrants that: (i) it owns the Submitted Data or otherwise has the right to grant the license set forth in this Agreement; (ii) the posting and use of Submitted Data on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Submitted Data on the Services does not result in a breach of contract between Customer and any third party.
    3. Thrive Warranties. Thrive warrants that during the applicable Order Term: (i) this Agreement, the Order, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards used by Thrive and designed to protect the security, confidentiality, and integrity of the Submitted Data; (ii) Thrive will not materially decrease the overall security or functionality of the Services; (iii) the Hosted Services and Extension will perform materially in accordance with the applicable Documentation; (iv) the output of the Professional Services will conform with the requirements set forth in the applicable Order (and if there are no such requirements, then such Professional Services will be performed in a good and workmanlike manner, consistent with industry standards, and by personnel that are properly qualified to perform such Professional Services); and (v) Thrive will use commercially reasonable efforts (e.g., commercially available anti-virus software) to detect and remove viruses from the Hosted Services.
    4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY ORDERS STILL IN EFFECT), THRIVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. THRIVE DOES NOT WARRANT THAT THE SERVICES OR THE EXTENSION WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES OR THE EXTENSION WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE SERVICES OR THE EXTENSION WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO SUBMITTED DATA OR CUSTOMER’S DEVICES. THRIVE SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY EXTENSION, PRODUCTS, OR SERVICES PROVIDED WITH THE SERVICES OR THE EXTENSION AND FOR THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON OR PROVIDED TO THE HOSTED SERVICES OR THE EXTENSION.
    5. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION IN ACCORDANCE WITH SECTION 7.2, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS OR BREACH OF SECTION 2.3, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  THE FOREGOING LIMITATIONS OF THIS SECTION 10.5 WILL NOT APPLY TO LIABILITY ARISING UNDER SECTION 9.1 OR SECTION 9.3.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
11. GENERAL PROVISIONS
    1. Assignment. Neither Party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that Thrive may assign this Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
    2. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet.  The delayed Party shall give the other Party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
    3. Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without reference to conflict of laws principles.  The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.  The Parties hereby agree and consent to the exclusive jurisdiction and venue of the state and federal courts located in Philadelphia, Pennsylvania for any claims arising under this Agreement. 
    4. Publicity.  Thrive may use Customer’s name as a reference for marketing or promotional purposes, including on Thrive’s website and in case studies, presentations, press releases, blog posts, and other communication with existing or potential Thrive customers, subject to any written trademark policies Customer may provide Thrive in writing, with reasonable advanced notice.  Neither Party will issue any press release or publish or disseminate any white papers, case studies describing the activities taking place under this Agreement without the other Party’s prior written consent, which consent shall not be unreasonably withheld.   
    5. Government Rights. Thrive provides the Extension and the Hosted Service, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Hosted Services and the Extension shall constitute “commercial” computer software. Government technical data and software rights related to the Hosted Services and the Extension include only those rights customarily provided to the public as defined in this Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Extension) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Extension or Computer Extension Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Thrive to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
    6. Miscellaneous. All Orders are hereby incorporated by reference into this Agreement. In the event of a conflict between these Terms and the Order, these Terms will prevail unless otherwise expressly stated in the Order. This Agreement is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter.  Customer may not subcontract or delegate any rights or obligations granted to it under this Agreement to any third parties, including its consultants or contractors, without the prior written consent of Thrive, except for those independent contractors and consultants that are deemed Authorized Users pursuant to the terms of Section 2.1.  Customer agrees that it is solely responsible for any liability arising out of its approved consultants and contractors authorized to the access the Hosted Services. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Thrive to object to such terms.  Any ambiguity in this Agreement shall be interpreted without regard to which Party drafted this Agreement or any part thereof.  There are no third party beneficiaries to this Agreement, and Customer acknowledges that Thrive shall have no obligations or liability whatsoever with any third parties with which Customer does business.  Thrive may make changes to this Agreement from time to time (“Changes”) by posting such Changes to https://thrivetrm.com/platform-terms/ or otherwise giving notice thereof.  Changes will be effective upon posting to such URL, or if later, the effective date set forth in such notice (“Change Effective Date”).   By continuing to use the Hosted Services after the Change Effective Date, Customer agrees to be bound by the Changes.  It is Customer’s responsibility to check such URL regularly for Changes.  Customer may provide Thrive with written notice that the Changes adversely affect Customer’s use of the Hosted Services, provided that Customer does so within thirty (30) calendar days from the Change Effective Date.  If, after its receipt of such notice, Thrive is able to verify such adverse effect, but is unable to reasonably mitigate it, then Customer may terminate the impacted Orders on written notice to Thrive, provided that Customer gives such termination notice within sixty (60) calendar days from the Change Effective Date.  This termination right is Customer’s sole and exclusive remedy for Changes.  This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.  Any required notice shall be given in writing by customary means with receipt confirmed at the address of each Party set forth above, or to such other address as either Party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, or 3 days after deposit in certified mail. The relationship between the Parties shall be that of independent contractors. Thrive may use subcontractors or otherwise delegate aspects of its performance under this Agreement; provided that Thrive shall remain responsible hereunder for any such subcontractor’s performance. Waiver of any term of this Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement and the remainder of this Agreement will continue in full force and effect without said provision. The Parties agree to comply with all applicable export control laws and regulations related to their responsive use of the Extension or any other Thrive IP.

Exhibit A

Service Level Agreement

Thrive will comply with the following performance standards and requirements, and support, quality assurance, reporting and related obligations:

1. Service Support.  

1.1 General.  Thrive will provide support services to Customer to resolve issues with the Hosted Services described below: Support services will include informational and implementation questions about the Hosted Services and all features of the Hosted Services, troubleshooting operational or systemic problems with the Hosted Services; and user issues with the Hosted Services.

1.2 Access to Support.  Thrive will provide support services during business hours, e.g., 9am to 5pm EST Monday through Friday and excluding public holidays (“Business Hours”). When notified of a support issue, Thrive will record the issue in its Support Ticketing System and assign a Severity Level based on the description provided in email.

1.2.1 Global Support. Thrive will provide support services in English during the business hours e.g., 9am to 5pm, of all user regions accessible via live chat within Thrive and email.  Cases will be escalated to the Thrive headquarters team as needed. 

1.3 Severity Levels and Target Resolution Times.  Thrive will use commercially reasonable efforts to provide a resolution as described below:

Level	Description	Target Resolution Time	Roles and Responsibilities for Incident Solving
Severe	A severe issue within the Hosted Services that renders functionality unavailable, non-functional or incorrect, for either (i) one or a small portion of Authorized Users, or (ii) for which there is no acceptable workaround.	1 business day or less.	Incident must be reported via email.Initial response will be provided as soon as possible during Business hours.Support personnel are working on incident during Customer local business hours.Customer personnel present and reachable during local business hours.
Important	An important issue within the Hosted Services that involves minimal end-user or operational impact. There is an acceptable workaround.	30 business days or within a mutually agreed upon timeframe.	Incident must be reported via email.Initial response will be provided within 1 business day.Support works on incident solution during local business hours.
General	Cosmetic impairment or request for enhanced feature. No immediate resolution required. Request for general information.	As determined by Thrive	Solution provided for cosmetic or other incidents possibly in future versions, depending on the roadmaps for the product.

1.4 Resolved Support Issues.  A request for support is considered resolved if:

• Customer indicates the issue is resolved.
• The source of the issue lies with a Customer or third party. In which case, Thrive will work with the third party or Customer (as appropriate on resolution).
• Customer does not respond to a query or request from Thrive after 7 consecutive days.

2. Hosted Services – Service Level Standards/Data Backup and Maintenance

2.1 The Hosted Services will meet the service level standards provided by Amazon Web Services.

2.2 Data backup and maintenance will be performed by Amazon Web Services.

3. Service Availability Definitions.

3.1 “Downtime” means any time during the Scheduled Availability Period that the Hosted Services are not available for access by Customer or Authorized Users.

3.2 “Excused Downtime” means any Downtime that: (i) occurs during an Excused Maintenance Period or (ii) is caused by: (A) Customer’s or any third party telecommunications or Internet services, (B) software or hardware not provided and controlled by Thrive (including Customer or third-party software or sites that are accessed or linked through the Hosted Services), or (C) Force Majeure Events.  

3.3 “Excused Maintenance Period” means any time period during which Thrive performs maintenance on the Hosted Services or Thrive Platform, provided that Thrive has furnished Customer with at least 3 days advance notice thereof.  

3.4 “Scheduled Availability Period” means the regularly scheduled time periods during each calendar month in which the Hosted Services are available for access.  Unless otherwise notified by Thrive, this time period is 7 days a week, 24 hours a day.

3.5 “Total Scheduled Availability” means the total number of minutes in the Scheduled Availability Period.

3.6 “Target Uptime Percentage” means the percentage of the Total Scheduled Availability that Thrive targets to make the Hosted Services available for access and is 99.95%.  

3.7 “Total Target Availability” means the Target Uptime Percentage multiplied by the Total Scheduled Availability.  

3.8 “Actual Uptime Percentage” means that percentage of the Total Target Availability (less any Excused Downtime) that the Hosted Services are actually available for access.  

4. Service Availability Credits.  If after the Effective Date, the Actual Uptime Percentage in any Scheduled Availability Period during a calendar month is lower than the Target Uptime Percentage, then Thrive will reduce the monthly Fees for the Hosted Services on Customer’s invoice for that month by 5% percent of the total Fees for the Hosted Services during that month.  Any such credit will constitute Thrive’s sole liability and Customer’s sole and exclusive remedy for any failure to achieve the Target Uptime Percentage.