This Terms of Service Agreement (this “Agreement”), governs your use of the Thrive Virtual Assistance website and services and is entered into by and between Thrive Virtual Assistance, LLC, (“Thrive VA”) a Florida limited liability company (“Thrive VA”) and the person and entity whose utilizing the Thrive VA website or services. (“Customer” and together with Thrive VA, the “Parties”, and each a “Party”). As used in this Agreement, the term “Customer” shall include parents, subsidiaries, and affiliates of Customer. By accessing or using the Thrive VA website or services, you agree to be bound by this Agreement. If you do not agree to all of the terms and conditions of this Agreement, you are not authorized to use the website or services.
WHEREAS, Thrive VA has the capability and capacity to provide certain outsourced staffing services (the “Services”) to Customer, whereby Thrive VA finds and provides access for Customer to dedicated Personnel (as defined below) who are able to perform certain work functions requested by Customer, whether for a defined period of time or on an ongoing basis; and
WHEREAS, Customer desires to retain Thrive VA to provide the Services, and Thrive VA is willing to perform such Services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Thrive VA and Customer agree as follows:
1. Services. Thrive VA provides outsourced staffing services by finding and providing access to personnel ("Personnel") who can perform specific work functions requested by customers, either for a defined period or on an ongoing basis.
2. Thrive VA Obligations. Thrive VA shall:
2.1. Provide candidates to Customer for the roles requested by the Customer.
2.2. Use commercially reasonable efforts to ensure that Personnel have the requisite skills and abilities generally needed to perform the work requested by the Customer.
2.3. Ensure that Personnel is paid for work performed for Customer, provided that Customer has paid to Thrive VA for the corresponding Services.
2.4. If requested by Customer, provide commercially reasonable assistance to Customer with onboarding of Personnel (“Onboarding”), which may include, at Customer’s direction, assistance with certain training of Personnel in connection with the work that such persons are to perform for Customer.
3. Customer Obligations. Customer shall:
3.1. Be solely and exclusively responsible for providing all Personnel with the necessary licenses, permissions, and access to Customer’s systems, tools, accounts, communications systems, and infrastructure that is necessary for Personnel to perform the work.
3.2. Be responsible for managing all Personnel, including without limitation: (a) assigning and monitoring, and the specific work assignments performed by each Personnel; (b) educating Personnel and ensuring their compliance with all rules, policies, regulations, and laws of Customer or that are applicable to Customer and/or the work being performed by Personnel; and (c) educating Personnel and ensuring their compliance with all matters pertaining to privacy, data storage, and security of Customer or that are applicable to Customer and/or the work being performed by Personnel.
3.3. Ensure that all work requested by Customer of Personnel is capable of being performed remotely.
3.4. Provide all Personnel with the necessary documentation, information, and training in Customer-specific systems, technologies, operations, and processes that they may reasonably require to perform the work.
3.5. Designate one person, agent, or employee to serve as its primary contact with respect to the Agreement and to act as an authorized representative with respect to matters related to Thrive VA.
3.6. Provide Thrive VA, at Thrive VA’s reasonable request, with information about Personnel and their performance of work. Further Customer shall, at Thrive VA’s reasonable request, provide Thrive VA with information and reasonable assistance in the event of a dispute between Customer and any Contractor or Thrive VA and any Contractor.
3.7. Comply with all applicable laws, regulations, and rules in: (a) its use of the Services; (b) its utilization of Personnel; (c) the projects and tasks that it assigns to Personnel; and (d) the methods, procedures, and technologies using which it instructs and requires Personnel to perform their work obligations.
3. Fees and Expenses.
4.1. Fees. Customer shall pay the fees (the “Fees”) discussed before utilizing Thrive VA’s services. Payment to Thrive VA of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Customer acknowledges and agrees that, Thrive VA may amend the amount of the Fees for Services (a) by providing Customer with a notice.
4.2. Expenses. Customer agrees to promptly reimburse Thrive VA for all reasonable expenses incurred by Thrive VA if Customer has been notified.
4.3. Third Parties. Customer acknowledges and agrees that Thrive VA may engage third parties (“Third Party Providers”) to assist it in providing the Services to Customer. If Thrive VA engages any Third-Party Providers, Thrive VA will be responsible for ensuring that such Third-Party Providers comply with the terms of this Agreement in their provision of goods and/or services (including any portion of the Services) to Customer. Further, Customer acknowledges and agrees that Thrive VA may need to purchase and/or utilize software, services, platforms, equipment, tools, materials, data, products, or subscriptions from third parties (collectively, the “Third Party Services”). If Customer shall be responsible for payment for such Third Party Services in excess of the amount of the Fees, Thrive VA will notify and seek acceptance of Customer before purchasing any such Third Party Services. If Customer agrees to accept additional Third Party Services recommended by Thrive VA that will be subject to additional costs, Customer agrees that it shall bear the full cost of obtaining them.
4.4. Payment of Fees. The Fees shall be paid to Thrive VA as follows: Thrive VA will automatically charge Customer’s payment card that Thrive VA has on file monthly, and Customer expressly authorizes Thrive VA to do so.
4.5. Late Payments. If Customer’s payment is not received by Thrive VA when due, Thrive VA may, at its discretion, suspend all Services until it receives in full all outstanding amounts of the Fees. All late payments shall bear interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Thrive VA for all costs incurred in collecting any late payments, including, without limitation, collections and attorneys’ fees and costs.
4.6. Payment Authorization. Customer expressly authorizes Thrive VA to automatically charge Customer’s provided payment card or draft Customer’s provided bank account.
4.7. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts owed by Customer in connection with its business, the Services, or with this Agreement; provided, however, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Thrive VA’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5. Limited Warranty.
5.1. Disclaimer of Warranties - General. ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ACCORDINGLY, THRIVE VA MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, TIMELINESS, OR ACCURACY OF THE SERVICES.
5.2 Disclaimer of Warranties – Personnel. THRIVE VA HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IN CONNECTION WITH ANY PERSONNEL OR ANY SERVICES, WORK PRODUCTS, OR DELIVERABLES CREATED OR PROVIDED BY PERSONNEL, OR WITH RESPECT TO ANY FITNESS, AVAILABILITY, QUALITY, TIMELINESS, SKILLS, ABILITIES, OR ANY OTHER QUALITY ABOUT ANY PERSONNEL.
5.3. No Third-Party Warranties. THRIVE VA PROVIDES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, FOR OR IN CONNECTION ANY THIRD-PARTY PROVIDERS OR THIRD-PARTY SERVICES.
6. Limitation of Liability; Indemnity.
6.1. Limitation of Liability . IN NO EVENT WILL THRIVE VA, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, PERSONNEL, AND AGENTS, BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN, AND SUFFERING, EMOTIONAL DISTRESS, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR ANTICIPATED PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, BREACH OF PRIVACY, UNAUTHORIZED ACCESS TO CUSTOMER’S DATA OR INFORMATION BY THIRD PARTIES, OR OTHER INTANGIBLE LOSSES (EVEN IF THRIVE VA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY, WITHOUT LIMITATION, TO: ANY ACTS OR OMISSIONS OF PERSONNEL; ANY ACTS OR OMISSIONS OF THIRD PARTIES; NEGLIGENT, KNOWING, PURPOSEFUL, UNLAWFUL, FRAUDULENT, OR MALICIOUS ACTS OR OMISSIONS OF ANY PERSONNEL OR ANY THIRD PARTY.
6.2 No Liability for Government Action. CUSTOMER EXPRESSLY AGREES TO WAIVE AND HOLD HARMLESS THRIVE VA, ITS EQUITY HOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE FOREGOING PARTIES RELATING TO INVESTIGATIONS OR ACTS UNDERTAKEN BY LAW ENFORCEMENT AUTHORITIES.
6.3. Customer Indemnity. Customer shall indemnify, defend, and hold harmless Thrive VA, its equity holders, directors, managers, officers, and employees from and against any and all Losses arising out of or resulting from: (a) misuse or unlawful use of the Services; (b) actions taken or penalties levied against Thrive VA by any government entity or regulatory authority due to the work performed or actions taken by any Personnel at the direction of Customer; (c) claims made by any third party against Thrive VA due to the work performed or actions taken by any Personnel at the direction of Customer; or (d) breach by Customer of Section 7 (Confidentiality).
7.1. Confidential Information. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “CONFIDENTIAL,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
7.2 Receiving Party Obligations. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
7.3. Permitted Disclosures. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
8. Intellectual Property.
8.1. Thrive VA Intellectual Property. All right, title, and interest in and to intellectual property rights, including copyrights and copyrightable materials, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, algorithms, know-how, schematics, processes, and other confidential information, trade dress, trade names, logos, company names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) that are owned or developed by Customer shall at all times remain in the sole and exclusive ownership of Customer. Nothing in this Agreement shall be deemed to create a license or assignment of any Customer Intellectual Property Rights in favor of Thrive VA.
8.3. Customer Intellectual Property. All right, title, and interest in and to Intellectual Property Rights owned or developed by Thrive VA shall at all times remain in the sole and exclusive ownership of Thrive VA. Except as otherwise expressly agreed by the parties in a written document executed by the parties for such purpose, nothing in this Agreement shall be deemed to create a license or assignment of any Thrive VA Intellectual Property Rights in favor of Customer.
9. Terms of Personnel Work.
9.1. Personnel Work Hours. The work performed by Personnel shall be performed during the hours specified by Customer, which Customer may modify from time to time with advance Notice to Thrive VA..
9.2. Replacement of Personnel. If Customer determines that Personnel is not performing his or her obligations or if Personnel is violating Customer’s written rules or policies that it provided to such Contractor in advance, Customer may request that Thrive VA remove Personnel and provide a replacement (a “For-Cause Replacement”). In such an event, Customer agrees to provide notice to Thrive VA explaining the reasons for requesting a For-Cause Replacement of the Personnel (a “Replacement Request”). Upon receiving a Replacement Request, Thrive VA agrees to review it and, provided that it meets the For-Cause Replacement requirements set forth in this Section, remove the Personnel from Customer’s account and provide a replacement Personnel within a commercially reasonable timeframe. Notwithstanding anything to the contrary in this Section, if Customer determines, in its reasonable judgment, that a Personnel’s actions have caused (or are likely to cause) substantial harm to Customer, its employees, its customers, or its business, Customer may suspend such Personnel effective immediately pending a Replacement Request and corresponding resolution as set forth herein. Thrive VA may replace any Personnel with another Personnel of comparable skills and expertise in Thrive VA’s discretion.
10. Termination, and Survival.
10.1. Termination for Cause. Either Party may terminate this Agreement effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(a) Materially breaches this Agreement, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Is dissolved or liquidated or takes any corporate action for such purpose.
(d) Makes a general assignment for the benefit of creditors.
10.2. Termination for Convenience. Either Party may terminate this Agreement for convenience by providing the other Party with a written notice prior to the desired termination date (the “Termination Notice”).
10.3 Effect of Termination of Agreement. If this Agreement is terminated by Customer for any reason, Thrive VA shall not be obligated to refund any amounts paid by Customer. Furthermore, Customer agrees to immediately pay Thrive VA any and all amounts due and payable for Services provided through the date of termination.
10.4 Refunds. Customer shall not be entitled to any refund for amounts paid.
10.5 Survival. The rights and obligations of the parties set forth in this Section 10, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, including without limitation, Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
11. Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
12. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) to the address set forth in the signature age, or via electronic mail (with tracking capabilities and/or read receipt). A Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.
13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
1.4. Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, and signed by each Party.
15. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Thrive VA. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. Thrive VA may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Thrive VA’s assets or equity, or pursuant to a corporate restructuring, without customer’s consent.
17. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
18. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
19. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Florida, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
20. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement., including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the United States District Court for the Northern District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Fulton County and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in United States District Court for the Northern District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Fulton County. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
21. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 12, a signed copy of this Agreement delivered by facsimile, email, digital signature service, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
22. Force Majeure. Thrive VA shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Thrive VA including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give notice in writing to Thrive VA to terminate this Agreement.