Terms & Conditions

THRIVE VIRTUAL ASSISTANCE

 

Terms of Service Agreement

 

This Terms of Service Agreement (this “Agreement”), dated as of the date you use the site, open an account, or agree or accept terms of service (the “Effective Date”), is entered into by and between Thrive Virtual Assistance, LLC, a Georgia limited liability company (“Thrive VA”) and the person or entity accessing and using the website (“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.

 

WHEREAS, Thrive VA has the capability and capacity to provide certain outsourced staffing services (the “Services”) to Customer, whereby Thrive VA locates 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 shall provide to Customer the Services which include providing access to talent. Customer is responsible for the number of remote independent contractor staff members (“Personnel”) they choose to hire, the scope of work to be performed by Personnel for Customer; (c) the hours, timeframe, and timing of the work to be performed by Personnel for Customer; (d) any software, systems, and tools of Customer that Personnel is expected to utilize in performing work; (e) Fees for the Services; and (f) any other additional terms. The Parties agree that Thrive VA may, in its sole discretion, ban or restrict Customers or Freelancers from the Thrive VA platform. If Thrive VA determines either party to be acting inaproproprietly, violating rules, not acting processionally, or taking any similar action Thrive VA has full authority to ban or restrict the individual or company immediately and without notice.

 

  1. Thrive VA Obligations. Thrive VA shall:

 

    1. Provide the number and type of Personnel agreed to by the Parties pursuant to one or more Statements of Work.

 

    1. Ensure that Personnel is available to begin the work on the dates agreed to by the Parties, as set forth in the corresponding Statement(s) of Work.

 

    1. Utilize commercially reasonable efforts to ensure that all Personnel has the requisite skills and abilities generally needed to perform the work set forth in the corresponding Statement(s) of Work.

 

    1. Ensure that Personnel is paid for work performed for Customer, provided that Customer has paid to Thrive VA for the corresponding Services.

 

    1. If set forth in the corresponding Statement(s) of Work, 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. Onboarding requirements shall be set forth in the Statement of Work.

 

    1. Maintain accurate records relating to the provision of the Services under this Agreement during the Term and for twelve (12) months after Termination.

 

    1. Comply with all laws and regulations applicable to Thrive VA in providing the Services.

 

  1. Customer Obligations. Customer shall:

 

    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. For clarity, Thrive VA shall have no access to any Customer systems, tools, accounts, or infrastructure.

 

    1. Be solely and exclusively responsible for managing all Personnel, including without limitation: (a) assigning, monitoring, and controlling the specific work assignments performed by each Contractor; (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. For clarity, Thrive VA shall have no responsibility in the management of Personnel in the course of their work for Customer.

 

    1. Ensure that all work requested by Customer of Personnel is capable of being performed remotely. For clarity, unless expressly set forth otherwise in the corresponding Statement of Work, all work shall be performed by Contractors remotely, from the preferred location of each Contractor, and not on-site at any Customer-selected facility.

 

    1. 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.

 

    1. 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 provision of Services.

 

    1. Provide Thrive VA, at Thrive VA’s reasonable request, with information about Personnel and their performance of work for Customer Provide.  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. For clarity, Customer shall have any obligation to provide to Thrive VA with any work products or any information of a confidential or proprietary nature.

 

    1. 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.

 

  1. Fees and Expenses.

 

    1. Client Fees. In consideration of the Services provided by Thrive VA, Customer shall pay the fees (the “Fees”) set forth in the corresponding Statement(s) of Work.  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, unless otherwise stipulated in a Statement of Work, Thrive VA may amend the amount of the Fees for Services (a) by providing Customer with notice at least thirty (30) days prior to the beginning of the upcoming Subsequent Term; or (b) by providing Customer with notice at least sixty (60) before the amended Fees are to enter into effect.

    2. Freelancer Fees. Customer agrees to promptly reimburse Thrive VA for all reasonable expenses incurred by Thrive VA in accordance with the Statement of Work if such expenses have been pre-approved, in writing by Customer.

 

    1. 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.

 

    1. Payment of Fees. Unless otherwise expressly provided in the applicable Statement of Work, the Fees shall be paid to Thrive VA in advance, as follows:

 

      1. If the total number of Personnel contracted by Customer is three (3) Contractors or less, then Thrive VA will automatically charge Customer’s payment card that Thrive VA has on file, and Customer expressly authorizes Thrive VA to do the same.

      2. If the total number of Personnel contracted by Customer is more than three (3) Contractors, then Customer agrees to pay to Thrive VA the aggregate total of the Fees (from all active Statements of Work) in advance, on or before the first day of each calendar month for the Services to be performed in that month via Automated Clearing House (ACH) or another method if so agreed to by the Parties. Thrive VA will utilize commercially reasonable efforts (but is not obligated) to send Customer a reminder of its payment obligation.

    1. Payment of Expenses. Unless otherwise expressly provided in the applicable Statement of Work, Thrive VA shall invoice Customer for all expenses pre-approved by Customer as the expenses are incurred.  Customer agrees to promptly pay all such invoices upon receipt.

 

    1. 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 on invoices 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.

 

    1. Payment Authorization. For all Services with recurring payment obligations, Customer expressly authorizes Thrive VA to automatically charge Customer’s provided payment card or draft Customer’s provided bank account, in accordance with the payment schedule offered in this Agreement or, if different, in the corresponding Statement of Work.

 

    1. 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. Further Customer shall have no obligations to collect, withhold, or remit any taxes for or on behalf of any Personnel it engages under this Agreement.

 

  1. Limited Warranty.

 

    1. Thrive VA Warranty. Thrive VA warrants that:

      1. It exists and is duly authorized in its jurisdiction of organization or incorporation;

 

      1. It has the requisite authority to enter into this Agreement and that its entry into the same does not violate any of its obligations to, or agreements with, any third parties; and

 

      1. It will perform Services in a timely, workmanlike, and professional manner.

 

    1. Breach of Warranty. Thrive VA’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:

 

      1. Upon Customer’s written Notice to Thrive VA of Thrive VA’s breach of Section 5.1 of this Agreement, Thrive VA shall use reasonable commercial efforts to promptly cure any such within fifteen (15) days from its receipt of the breach Notice; provided, that if Thrive VA cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written Termination Notice in accordance with Section 10 herein.   

 

      1. The foregoing remedy to cure shall only be available if Customer provides written notice of such breach within thirty (30) days after delivery of such Services to Customer.

 

    1. Disclaimer of Warranties - General. EXCEPT FOR THE WARRANTIES THAT ARE PROVIDED IN SECTION 5.1, 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.

 

    1. 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.

 

    1. 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.

 

  1. Limitation of Liability; Indemnity.

 

    1. Limitation of Liability . IN NO EVENT WILL THRIVE VA, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, 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.

    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.

 

    1. Exclusive Remedy. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE THE TERMINATION OF THIS AGREEMENT, WHICH WILL RESULT IN THE CLOSURE OF CUSTOMER’S ACCOUNT, CESSATION OF CUSTOMER’S USE OF THE SERVICES, AND TERMINATION OF THE ENGAGEMENT OF ALL PERSONNEL. IF APPLICABLE, ANY AND ALL MONETARY AWARDS TO CUSTOMER SHALL BE LIMITED TO THOSE SET FORTH IN SECTION 6.4.

 

    1. Maximum Liability. IN NO EVENT SHALL THRIVE VA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY CUSTOMER TO THRIVE VA PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

    1. Thrive VA Indemnity. Thrive VA shall indemnify, defend, and hold harmless Customer, its equity holders, directors, managers, officers, and employees from and against any and all claims and resulting costs, liabilities, losses, expenses, and damages (including reasonable attorney's fees)(collectively, “Losses”) arising out of or resulting from: (a) breach by Thrive VA’s of Section 7 (Confidentiality) of this Agreement; or (b) any claims, suits or proceedings brought against Customer alleging that the Services infringe upon the Intellectual Property Rights of a third party.

    2. 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).

    3. Indemnity Procedures. The obligation to provide indemnification is conditioned upon the indemnified Party: (a) timely notifying the indemnifying party of the claim; (b) tendering the sole control over the defense and settlement of the claim to the indemnifying Party; and (c) fully cooperating with the indemnifying Party in the defense and settlement of the claim at the indemnifying party’s expense.

  1. Confidentiality.

 

    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.

    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.

    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.

  1. Intellectual Property.

 

    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.

    2. 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.

  1. Terms of Personnel Work.

 

    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.

    2. Personnel Holidays. Customer acknowledges that Personnel engaged by Customer to perform the work under this Agreement may be located in jurisdictions that are different from those of Customer and Thrive VA, and which have different working holiday periods and holiday time off requirements.  Accordingly, unless expressly set forth otherwise in a Statement of Work Customer agrees that all Personnel shall be entitled to time off for federal holidays in the United States and national holidays in their respective jurisdiction(s). Upon Customer’s request, Thrive VA shall provide a listing of all jurisdictions applicable to Personnel and their respective holidays.

    3. Replacement of Personnel. If Customer determines that a Contractor is not performing his or her obligations as set forth in the Statement of work or if a Contractor is violating Customer’s written rules or policies that it provided to such Contractor in advance, Customer may request that Thrive VA remove such Contractor and provide a replacement (a “For-Cause Replacement”). In such an event, Customer agrees to provide notice to Thrive VA explaining in reasonable detail the reasons for requesting a For-Cause Replacement of the Contractor (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 Contractor from Customer’s account and provide a replacement Contractor within a commercially reasonable timeframe. Notwithstanding anything to the contrary in this Section, if Customer determines, in its reasonable judgment, that a Contractor’s actions have caused (or are likely to cause) substantial harm to Customer, its employees, its customers, or its business, Customer may suspend such Contractor effective immediately pending a Replacement Request and corresponding resolution as set forth herein. Thrive VA may replace any Contractor with another Contractor of comparable skills and expertise in Thrive VA’s discretion, by providing advance Notice of the same to Customer.

  1. Term, Termination, and Survival.

 

    1. Initial Term. This Agreement shall commence as of the Effective Date and shall continue for twelve (12) months (the “Initial Term”), unless earlier terminated in accordance with this Section 10.

 

    1. Subsequent Terms. Following the completion of the Initial Term, this agreement shall automatically renew for periods of time equal to the Initial Term (each, a “Subsequent Term”, and together with the Initial Term, the “Term”), unless earlier terminated in accordance with this Section 10.

 

    1. Terms for Statement of Work. Each Statement of Work may be terminated in accordance with this Section 10 without terminating this Agreement.  If a Statement of Work provides for a set of finite Services or schedule, such Statement of Work shall automatically expire upon completion of the work provided thereunder.

 

    1. Termination for Cause. Either Party may terminate this Agreement or any individual Statement of Work, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:

 

      1. 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.

 

      1. Becomes insolvent or admits its inability to pay its debts generally as they become due.

 

      1. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days.

 

      1. Is dissolved or liquidated or takes any corporate action for such purpose.

 

      1. Makes a general assignment for the benefit of creditors.

 

      1. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

    1. Termination for Convenience. Either Party may terminate this Agreement or any Statement of Work for convenience by providing the other Party with thirty (30) day written notice prior to the desired termination date (the “Termination Notice”).

 

    1. 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.

 

    1. Effect of Termination of Statement of Work. If Customer terminates a Statement of Work, Thrive VA shall not be obligated to refund any amounts paid by Customer in connection with that Statement of Work.  Furthermore, Customer agrees to immediately pay Thrive VA: (a) any and all amounts due and payable for Services under the Statement of Work through the date of termination; and (b) any costs or expenses incurred by Thrive VA in preparation for, or in the course of, providing Services to Customer through the date of termination.

 

    1. Refunds. Customer shall not be entitled to any refund for amounts paid unless expressly stated otherwise in the corresponding Statement of Work.     

 

    1. 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.

 

  1. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, 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. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

 

  1. 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 and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section 12). 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). Except as otherwise provided in this Agreement, 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.

  

  1. 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. 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.

 

  1. 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. Except as otherwise set forth in this Agreement, 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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 Georgia, 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 Georgia.

 

  1. 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 Georgia or, if such court does not have subject matter jurisdiction, the courts of the State of Georgia 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 Georgia or, if such court does not have subject matter jurisdiction, the courts of the State of Georgia 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.

 

  1. 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.

 

  1. 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.

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