IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF THRIVE TALENT AND ITS AFFILIATES (“THRIVE TALENT”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE THRIVE TALENT WEBSITE OR BY UTILIZING THE THRIVE TALENT SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TOS”). THE THRIVE TALENT SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
Thrive Talent will provide the Services, and you may access and use the Services, in accordance with this Agreement. Thrive Talent may provide any of the Services hereunder through any of its Affiliates. If You order Services through an on-line registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.
System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
- DEFINITIONS. The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa. Service specific definitions are found in the Services Description located at www.thrivetalent.com.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by or is under common control with that Party. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.
“End User” means a Host or Participant (as defined in the Services Description) who uses the Services.
“Initial Subscription Term” means the initial subscription term for a Service as specified in an Order Form.
“Service Effective Date” means the date an Initial Subscription Term begins as specified in an Order Form.
“Renewal Term” means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term as specified in an Order Form.
“Taxes and Fees” and “Taxes or Fees” means all applicable sales, use, environmental or regulatory taxes, VAT, fees, duties (including customs duties), charges, surcharges or assessments levied on the provision of Services to Customer (exclusive of any income tax imposed on Thrive Talent).
“VAT” means any value added tax, and any other tax of a similar nature, whether imposed in a Member State of the European Union in substitution for, or levied in addition to, such tax, or imposed elsewhere, any Goods and Services Tax, PIS/COFINS, any similar indirect Tax or any Tax analogous thereto imposed in connection with, or otherwise relating to, the Services rendered by Thrive Talent to Customer.
“Your Data” means information provided to Thrive Talent so that Thrive Talent can fulfill the terms of the Agreement and provide access to the Services (e.g., company name, billing address, taxpayer ID number, VAT registration number, contact name and information). You are solely responsible for the accuracy of Your Data, and Thrive Talent has no liability whatsoever for errors and omissions in Your Data.
- SERVICES. Thrive Talent will provide the Services as described on the Order Form, and standard updates to the Services that are made generally available by Thrive Talent during the term. Thrive Talent may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice.
- Beta Services. Thrive Talent may, from time to time, offer access to services that are classified as Beta version. Access to and use of Beta versions may be subject to additional agreements. Thrive Talent makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and Your use of a Beta version is at Your sole risk.
- USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and Your End Users’ use of the Services and shall abide by, and ensure compliance with, all Laws in connection with Your and each End User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy, and export control. Use of the Services is void where prohibited.
- Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of Your username and password and agree not to disclose such to any third party.
- Your Content. You agree that You are solely responsible for the content (“Content”) sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third-party rights. You represent and warrant that You have the right to upload the Content to Thrive Talent and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Thrive Talent be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although Thrive Talent is not responsible for any Content, Thrive Talent may delete any Content, at any time without notice to You, if Thrive Talent becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
- Prohibited Use. You agree that You will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Thrive Talent’s networks, Your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of Thrive Talent or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Thrive Talent’s security systems. (ix) use the Services in violation of any Thrive Talent policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations.
- Limitations on Use. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with Thrive Talent. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
- RESPONSIBILITY FOR END USERS. You are responsible for the activities of all End Users who access or use the Services through your account, and you agree to ensure that any such End User will comply with the terms of this Agreement and any Thrive Talent policies. Thrive Talent assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact Thrive Talent at [email protected]. Thrive Talent may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Thrive Talent be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.
- THRIVE TALENT OBLIGATIONS FOR CONTENT. Thrive Talent will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. Thrive Talent will notify You if it becomes aware of unauthorized access to Content. Thrive Talent will not access, view or process Content except (a) as provided for in this Agreement and in Thrive Talent’s Privacy Statement; (b) as authorized or instructed by You, (c) as required to perform its obligations under this Agreement; or (d) as required by Law. Thrive Talent has no other obligations with respect to Content.
- ELIGIBILITY. You affirm that You are at least 18 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Your access may be terminated without warning if we believe that You are under the age of 18 or are otherwise ineligible.
- INTENDED USE; RESTRICTION ON USE BY CHILDREN. The Services are intended for business use. You may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. Thrive Talent is not intended for use by individuals under the age of 18, unless it is through a Subscriber (as that term is defined in the Services Description) using Thrive Talent.
- CHARGES AND CANCELLATION. You agree that Thrive Talent may charge to Your credit card or other payment mechanism selected by You and approved by Thrive Talent (“Your Account”) all amounts due and owing for the Services. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. Thrive Talent may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Thrive Talent will provide you with prior notice and an opportunity to terminate Your Account if Thrive Talent changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event Thrive Talent is unable to collect the fees owed to Thrive Talent for the Services through Your Account, Thrive Talent may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Thrive Talent in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Thrive Talent may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.
- TAXES. Unless stated otherwise, all prices and fees shown by Thrive Talent are exclusive of Taxes and regulatory fees, service, service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Where applicable, Taxes and regulatory fees will be charged on the invoices issued by Thrive Talent in accordance with local laws and regulations. Thrive Talent, in its sole discretion, will calculate the amount of Taxes due. The taxes and regulatory fees charged can be changed without notice.
- VAT Invoices. If required by Law, Thrive Talent will issue a VAT invoice, or a document that the relevant taxing authority will treat as a VAT invoice, to You. You accept that this invoice may be issued electronically.
- Tax exemptions. If You are exempt from any Tax or Fee, You will provide Thrive Talent with all appropriate tax exemption certificates, and/or other documentation satisfactory to the applicable taxing authorities to substantiate such exemption status. Thrive Talent reserves the right to review and validate tax exemption documentation. In the event that the tax exemption documentation is not valid, Thrive Talent reserves the right to charge applicable taxes to You.
- Payment of Taxes and Fees. You will pay to Thrive Talent any applicable Taxes and Fees. You are solely responsible for paying any and all Taxes and Fees owing as a result of Thrive Talent’s provision of the Services to You. If You are required to pay any Taxes and Fees, You shall pay such amounts with no reduction or offset in amounts payable to Thrive Talent hereunder and You will pay and bear such additional amount, as shall be necessary such that Thrive Talent receives the full amount of payment required as if no such reduction or offset were required.
- VAT due by the customer. In the event Taxes and Fees are due towards the taxing authorities by You instead of Thrive Talent, through the reverse charge or other similar mechanism, You will provide Thrive Talent with all appropriate evidence for Thrive Talent to demonstrate Your business nature, such as a valid VAT registration number (or similar information required under the relevant VAT laws). Thrive Talent reserves the right to review and validate your VAT registration number. In the event that the VAT registration number is not valid, Thrive Talent reserves the right to nevertheless charge applicable VAT to You. For the avoidance of doubt, if VAT is due by You to a taxing authority, through the reverse charge or other similar mechanism, You are solely responsible for paying those amounts to the relevant taxing authority such that Thrive Talent receives the full amount of payment required.
- Tax determination. Tax determination is principally based on the location where the Customer has established its business based on the Customer Data, or for individuals where that individual permanently resides. This will be defined by Thrive Talent as Your ‘Sold To’ address. Thrive Talent reserves the right to cross reference this location against other available evidence to validate whether Your location is accurate. In the event that Your location is inaccurate, Thrive Talent reserves the right to charge You any outstanding Taxes and Fees.
- Use and enjoyment. If You purchase Thrive Talent Services, and those Services are used and enjoyed by a subsidiary of You in a country that is different to Your location as determined by Section 9(e) of this TOS, You confirm that where required You will treat this as a supply to Your subsidiary. In the event You purchase Services and those Services are used and enjoyed by a branch or individual in a country that is different to Your location as determined by Section 9 (e) of this TOS, You acknowledge that You will inform Thrive Talent of the Services that have been allocated and You acknowledge that Thrive Talent reserves the right to charge Taxes and Fees based on the use and enjoyment of those Services.
- TERMINATION. The Thrive Talent website contains information on how to terminate Your Account. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current term. Your Order Form may provide that a Renewal Term will begin automatically unless either party provides notice of termination at least thirty (30) days prior to the commencement of the next Renewal Term. If You fail to comply with any provision of this Agreement, Thrive Talent may terminate this Agreement immediately and retain any fees previously paid by You. Sections 1 and 3 through 22, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.
- PROPRIETARY RIGHTS. Thrive Talent and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“Thrive Talent Marks”) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any Thrive Talent Marks, or other proprietary information (including images, text, page layout, or form) of Thrive Talent without express written consent. You may not use any meta tags or any other “hidden text” utilizing Thrive Talent Marks without Thrive Talent’s express written consent.
- CONFIDENTIALITY. Each party agrees to regard and preserve as confidential all non-public information provided by the other party relating to the business, systems, operations, strategic plans, clients, pricing (including, but not limited to, the pricing terms herein), methods, processes, financial data, programs, and/or products of the other party in any form, that are designated as “confidential,” or a reasonable person knows or reasonably should understand to be confidential (herein “Confidential Information”). For purposes of the Agreement, Your Confidential Information shall include Your Data, and any information disclosed to Thrive Talent by You relating to the business, systems, operations, strategic plans, clients, pricing, methods, processes, financial data, programs, and/or products of You. Each party agrees to limit its disclosure of the other party’s Confidential Information to as few persons as possible and only to those persons with a need to know that are its or its Affiliates’ personnel and subject to an obligation to keep such information confidential. Except as needed to fulfill their respective obligations under the Agreement, neither party shall, without first obtaining the other party’s prior written consent, disclose to any person, firm or enterprise, except as expressly permitted herein, or use for its own benefit, or the benefit of a third party, the Confidential Information of the other party.
- Exclusions. “Confidential Information” shall not include Content or information that (a) is already rightfully known to a party at the time it is obtained from the other party, free from any obligation to keep such information confidential; (b) is or becomes publicly known or available through no wrongful act of a party; (c) is rightfully received from a third party without restriction and without breach of this TOS; or (d) is developed by a party without the use of any proprietary, non-public information provided by the other party under the Agreement.
- Exception. Either party may disclose Confidential Information where required by law, regulation, or court order, provided that the party subject to such law, regulation or court order shall, where permitted, notify the other party of any such use or requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.
- Confidentiality Period and Obligations. The confidentiality obligations set forth in this section of the TOS shall remain in effect for a period of five (5) years from the disclosure of the information. Both parties agree (a) to take reasonable steps to protect the other party’s Confidential Information, and these steps must be at least as protective as those the receiving party takes to protect its own Confidential Information, and no less than a reasonable standard of care; (b) to notify the disclosing party promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and (c) in the event of any unauthorized disclosure by a receiving party, to cooperate with the disclosing party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
- COPYRIGHT. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Thrive Talent may deny access to the Services to any User who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify Thrive Talent.
- EXPORT RESTRICTIONS. You acknowledge that the Services, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). Thrive Talent will provide the U.S. export classification(s) applicable to its Services upon request. You and Your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) You and Your End Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that You and Your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (b) are not persons, or owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) You and Your End Users located in China, Russia, or Venezuela are not Military End Users and will not put Thrive Talent’s Services to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by You or Your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) You and Your End Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.
- INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Thrive Talent, its Affiliates, suppliers and any other party authorized by Thrive Talent to resell, distribute, or promote the Services (“Resellers”), and under such circumstances Thrive Talent, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
- NO WARRANTIES.YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND THRIVE TALENT, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THRIVE TALENT, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. THRIVE TALENT DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. THRIVE TALENT CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.
- INDEMNIFICATION. You agree to indemnify, defend and hold harmless Thrive Talent, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.
- LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THRIVE TALENT OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF THRIVE TALENT, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THRIVE TALENT’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
- AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION. If You are located in the United States, You agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions of Exhibit A. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
- Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of Michigan, U.S.A., as applied to agreements entered into and to be performed in Michigan by Michigan residents. Except as provided in Exhibit A, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Kent County, Michigan and the federal courts in Michigan.
- Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
- General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Thrive Talent may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Thrive Talent will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
This Exhibit A to the TOS describes the further provisions which apply to the Binding Arbitration and Class Action Waiver.
- Disputes. A dispute is any controversy between You and Thrive Talent concerning the Services, any software related to the Services, the price of the Services, Your account, Thrive Talent’s advertising, marketing, or communications, Your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or Thrive Talent’s intellectual property rights. As part of the best-efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to [email protected]
- Small Claims Court Available. You may initiate an action in your local Small Claims Court if You meets the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, Thrive Talent reserves the right to require arbitration.
- Arbitration Procedure. Disputes not resolved pursuant to Section A or B shall be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org. Arbitration hearings will take place in the federal judicial district of Your primary business location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive Law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
- Arbitration Fees. If You are unable to afford the arbitration costs, Thrive Talent will advance those costs to You, subject to the arbitrator’s determination if costs should be reimbursed to Thrive Talent if Thrive Talent prevails. For disputes involving more than $75,000, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Conflict with AAA Rules. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.
- Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
- Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.