Thrive Global Services Agreement

Dated August 25, 2019

This Thrive Global Agreement (including any exhibit and/or schedule attached hereto and any Order Forms (as defined below), this “Agreement”), dated as of the Order Form Effective Date pursuant to the Order Form attached hereto (the “Effective Date”), is made between Thrive Global Holdings, Inc. (“Thrive Global”) and the Client named at the top of the Order Form (“Client”). Undefined capitalized terms in the Order Form are defined herein. If any terms conflict between this Order Form and the Thrive Global Agreement, the Thrive Global Agreement will prevail unless the term in the Order Form specifically states that it will govern with respect to such conflicting term. Each of Thrive Global and Client may be referred to herein individually as a “Party” or collectively as the “Parties”. The Parties hereby agree as follows:

MISSION STATEMENT: THRIVE GLOBAL’S MISSION IS TO END THE STRESS AND BURNOUT EPIDEMIC BY OFFERING COMPANIES AND INDIVIDUALS SUSTAINABLE, SCIENCE-BASED SOLUTIONS TO ENHANCE WELL-BEING, PERFORMANCE AND PURPOSE AND CREATE A HEALTHIER RELATIONSHIP WITH TECHNOLOGY. THRIVE GLOBAL IS COMMITTED TO ACCELERATING THE CULTURE SHIFT THAT ALLOWS PEOPLE TO RECLAIM THEIR LIVES AND MOVE FROM MERELY SURVIVING TO THRIVING. IN AN EFFORT TO REDUCE STRESS ASSOCIATED WITH NEGOTIATING LEGAL DOCUMENTS BETWEEN THE PARTIES, WE CAREFULLY DRAFTED THIS THRIVE GLOBAL AGREEMENT SO IT REPRESENTS A FAIR AND BALANCED APPROACH WHICH IS CONSISTENT WITH ESTABLISHED MARKET PRACTICES. WE WELCOME YOUR FEEDBACK AND LOOK FORWARD TO PROMPTLY DISCUSSING AND EFFICIENTLY RESOLVING ANY QUESTIONS OR ISSUES YOU OR YOUR LEGAL TEAM MAY HAVE. 

1. Solutions.

1.1. Solutions. Subject to the terms and conditions of this Agreement, Thrive Global will provide or make available such of the products described in Exhibit A described in an order that references this Agreement which is signed by an authorized representative of each Party (including any exhibit and/or schedule attached thereto, “Order Forms”) (each, a “Solution” and collectively, the “Solutions”). A Solution is not included in this Agreement unless it has been specifically referenced therein. The Solutions will be made available for the period set out in the Order Form (the “Term”).

1.2. Renewal. An Order Form will expire upon the expiration of the Term, and unless otherwise stated in the Order Form, the terms of that Order Form will automatically renew for twelve months (each such renewal period, a “Renewal Term”) on identical terms and conditions (including quantity and price) unless either Party notifies the other Party in writing at least ninety (90) days prior to expiration of the Term that it does not intend to renew.

1.3. Evaluation. If any Order Form indicates that Client may access any of the Solutions for free during an evaluation period (the “Evaluation Solution”), then Client may use the Evaluation Solution in accordance with Section 4.1 during such specified evaluation period (the “Evaluation Period”); provided, that, such Evaluation Solution is provided during the Evaluation Period “AS IS”, without indemnification or warranty of any kind. Thrive Global does not provide any support with respect to the Evaluation Solution during the Evaluation Period. Also, certain features, services or other functionality may not be available for the Evaluation Solution during the Evaluation Period. Continued use of the Solutions after the Evaluation Period requires that Client submit the applicable payment set forth in the Order Form.  

1.4. Provision of Solutions. The Solutions provided by Thrive Global to Client will comply in all material respects with any delivery dates, specifications or requirements set forth in this Agreement.      

1.5. Restrictions. Except as expressly permitted hereunder, Client will not and will not authorize any third party to: (a) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Solutions; (b) translate or create derivative works based on any of the Solutions; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Solutions available to any third party; (d) remove or obscure any proprietary notices or labels of Thrive Global or its suppliers on any of the Solutions; or (e) access or use the Solutions (or any part thereof) to build a competitive product or service. 

1.6. Feedback. Client may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Thrive Global with respect to the Solutions. Thrive Global may or may not to proceed with the development of the Feedback. Client hereby grants Thrive Global a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, display, perform, and create derivative works of the Feedback and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

2. Fees and Payment.  

2.1. General. Client will pay the amounts due to Thrive Global in accordance with the applicable Order Forms and as provided herein. All payments will be nonrefundable, non-cancellable and irrevocable except as otherwise provided in this Agreement. Unless otherwise provided in an Order Form, all fees set forth on an invoice will be due and payable within thirty (30) calendar days after the date Thrive Global sends such invoice to Client. With respect to any professional services, Thrive Global will invoice Client (a) on the Start Date for any applicable retainer amount and (b) monthly in arrears with respect to the professional services performed during such month at the hourly rate set forth above, which amounts will be credited against the retainer until such retainer is depleted. Thrive Global reserves the right to request an additional retainer once the initial retainer is depleted. Client will pay all invoices, without offset or deduction, within thirty (30) calendar days after the invoice date. Payment obligations are unconditional and not dependent on a “go live” date or the use of the Products in a “live environment”.

2.2. Net of Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated, that may be applicable to such amounts payable, (collectively, but excluding any taxes based solely on the income of either Party, “Taxes”). Client will be solely responsible for payment of any sales, use, duty or value-added Tax due in relation to any of Client’s transactions with Thrive Global and Thrive Global may add the amount of such Tax to any invoice to Client or, if applicable, withhold such Tax from any payment to Client.  

2.3. Suspension. Thrive Global reserves the right to suspend Client’s access to the Solutions with notice in the event of Client non-payment of outstanding invoices. 

3. Client Assistance; Client Materials; Data.

3.1. Client Assistance. Client will collaborate with Thrive Global in the provision of Solutions as set forth in the Order Form and otherwise reasonably cooperate with and provide prompt assistance to Thrive Global in order to enable Thrive Global to deliver the Solutions by the Start Date specified in an Order Form, including, but not limited to, any assistance specifically identified on an Order Form. In the event the Solutions requires personal attendance on Client’s premises, Client will also provide safe and adequate space, power, internet connectivity, administrative assistance, access to technical resources, qualified personnel familiar with Client’s hardware, software and data processing requirements, and other resources as reasonably requested by Thrive Global. Client acknowledges and agrees that (a) Thrive Global’s timely provision of the Solutions is contingent upon its receipt from Client of the resources, information and assistance requested by Thrive Global and (b) Client’s failure to provide the assistance contemplated in this Section 3.1 may result in Client incurring additional costs attributable to such failure. Thrive Global personnel will abide by applicable Client safety, security and similar work-related policies, procedures, controls and rules provided in writing to Thrive Global.  

3.2. Client Materials. Client owns all right, title and interest in and to any software, content, marks, or other information, material or intellectual property of Client or Client’s suppliers which Client provides or makes available to Thrive Global in connection with Thrive Global’s delivery of the Solutions (the “Client Materials”), other than the limited rights expressly granted in this Section 3.   Subject to the terms and conditions of this Agreement, Client hereby grants Thrive Global the non-exclusive, non-transferable right and license to copy, use, modify, distribute, display and disclose Client Materials solely to provide the Solutions to Client pursuant to the terms and conditions of this Agreement.  

3.3. Client Data. Client owns the proprietary data or information and any personally identifiable information submitted by Client and/or its Users in connection with accessing and using any of the Solutions, excluding (a) data and information relating to the operation and/or performance of the Solutions and (b) any information that a User expressly submits to Thrive Global in connection with a User interacting with a Thrive Global product or service (the “Client Data”). Client hereby grants to Thrive Global (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable, right and license to copy, distribute, display and create derivative works of and use the Client Data to perform Thrive Global’s obligations under this Agreement, (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicensable right and license to copy, distribute, display and create derivative works of and otherwise use the Client Data (i) in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (ii) to the extent that such data is aggregated or anonymized (i.e. no personally identifiable information including, without limitation, name, age, phone number and email address and no identification of the specific source of such data) (the “Anonymous Client Data”) for marketing and other related purposes. Thrive Global owns the confidential or anonymous data or information provided by Client’s employees in response to diagnostic or other solicitations of information conducted by Thrive Global for or on behalf of Client.

4. Intellectual Property.

4.1. Ownership; License Grant. Subject to the terms and conditions of this Agreement and Order Form, Thrive Global hereby grants to Client, during the Term, a non-exclusive, non-transferable right to access and use (but not modify or disaggregate) the Solutions solely for internal business purposes. Thrive Global reserves all right, title and interest in and to the Solutions other than the rights expressly granted herein and in an Order Form. Unless otherwise specified in the applicable Order Form, the Solutions may only be accessed and used by employees or contractors of Client who are authorized by Client to access and use the Solutions and, when applicable, have been supplied User identifications and passwords by Client (“Users”). 

4.2. Notices and Enforcement. Client agrees that all trademark and intellectual property notices contained in the Solutions must be preserved unmodified. Client hereby acknowledges and agrees that the Solutions constitute and contain valuable proprietary products and trade secrets of Thrive Global, embodying substantial creative efforts and confidential information, ideas, and expressions.

4.3. Client Restrictions. Client agrees not to challenge, directly or indirectly, any right or interest of Thrive Global in the Solutions nor the validity or enforceability of Thrive Global’s rights under applicable law. Client agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Solutions or to take any other action which may adversely affect Thrive Global’s rights or interest in the Solutions in any jurisdiction.

5. Confidentiality.

As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which each operates, to be of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party. Information will not be deemed Confidential Information if such information: (i) was available to or in its possession prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights or perform its obligations under this Agreement. Each Receiving Party will use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to such employees, delivery partners and agents of the Receiving Party as may have a need to know such information in the course of their duties, provided, that, in each case, such recipients are bound by written confidentiality obligations at least as restrictive as those set forth herein. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and uses commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order). Upon the written request of the Disclosing Party, the Receiving Party agrees to promptly return or destroy all Confidential Information, including all copies thereof in its possession (certifying the fact of such destruction to the Disclosing Party), with the exception that the Receiving Party (a) may retain an archival copy of the Confidential Information and (b) is not required to destroy or alter computer-based back-up files generated in the normal course of its business. Any Confidential Information contained in such archival copies or back-up files will, however, remain subject to the confidentiality obligations of this Section 5.

6. Term and Termination. 

6.1. Term; Termination. This Agreement will commence as of the Effective Date and continue for the Term set forth in the Order Form. Either Party may terminate this Agreement and/or any Order Form immediately by written notice in the event the other Party is in material breach of any obligation under this Agreement or any Order Form, which breach is incapable of cure or which breach, being capable of cure, has not been cured within thirty (30) days after receipt of written notice.  

6.2. Effect of Termination. Upon the expiration or termination of this Agreement, all amounts owed to Thrive Global under this Agreement which accrued before such termination or expiration will be immediately due and payable. Notwithstanding the foregoing, Sections 1.6, 2, 3, 4, 5, and 7 through 11 (inclusive) will survive the expiration or termination of this Agreement for any reason.

7. Representations and Warranties.

7.1. Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required operational power, right and authority to enter into this Agreement and perform its obligations hereunder, (b) such Party will comply with all applicable laws and regulations with respect to its activities under this Agreement, including, without limitation, Applicable Privacy and Data Security Laws (as defined below), (c) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party, and (d) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

7.2. Thrive Global Warranties. Thrive Global further represents and warrants to Client that: (a) Thrive Global will use industry standard measures to prevent the Solutions from containing any “virus”, “trap door”, “Trojan Horse”, “worm”, “self destruction”, “disabling”, “metering” device or any other malicious code (“Malicious Code”), which could impair Client’s, or its Affiliates’, use of or access to the same; (b) Thrive Global will use commercially reasonable efforts to ensure the security of Client Materials (subject to the license rights set forth in Section 3); and (c) the Solutions will operate substantially in accordance with, and perform, the material functions and features as set out in this Agreement and the Order Form.

7.3. Client Warranties. Client further represents and warrants to Thrive Global that: (a) Client will use industry standard measures to prevent Client Materials and Client Data from containing any Malicious Code, which could impair Thrive Global, or its Affiliates’ use of or access to the same; (b) Client will use reasonable efforts to prevent unauthorized access to, or use of, the Solutions and in the event of any such unauthorized access or use, promptly notify Thrive Global; (b) Client will obtain and maintain all necessary licenses, consents and permissions necessary for Thrive Global (including its agents) to perform its obligations under this Agreement, including, without limitation, the Solutions and (c) Client will use commercially reasonable efforts to ensure that its network and systems comply with any relevant specifications provided by Thrive Global to Client in writing from time to time.     

7.4. Security; Personally Identifiable Information. Thrive Global will implement and maintain reasonable security procedures and practices with respect to the Client Materials in accordance with the terms of this Agreement and any Applicable Privacy and Data Security Laws. Thrive Global will notify Client promptly if Thrive Global becomes aware (a) of a Security Event (as defined below) or (b) that any person who has had access to Client Materials has violated Section 3.3 or this Section 7.4 applicable to Client Materials. Thrive Global will not collect any Personally Identifiable Information (as defined below) of Users, without the prior written consent of Client; provided that Client hereby consents to the collection of usage statistics associated with any User’s access of the Solutions solely in connection with Thrive Global performing its obligations under this Agreement.

8. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOLUTIONS ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. THRIVE GLOBAL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. THRIVE GLOBAL DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED, FREE FROM DEFECTS OR MEET CLIENT’S REQUIREMENTS. CLIENT ACKNOWLEDGES THAT THRIVE GLOBAL IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES RELATED TO OR ARISING FROM CLIENT’S USE OF THE SOLUTIONS.

9. Indemnification.

Thrive Global will indemnify, defend and hold harmless Client from and against any third party claim arising out of related to an assertion that any Solution infringes or misappropriates any intellectual property right of the third party. Thrive Global will pay those costs and damages incurred by Client that are specifically attributable to such claim. The foregoing obligations are conditioned on Client (a) notifying Thrive Global promptly in writing of such claim, (b) giving Thrive Global sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Thrive Global’s request and expense, assisting in such defense or settlement. If any Solution becomes, or in Thrive Global’s opinion is likely to become, the subject of an infringement claim, Thrive Global may, at its option, and as Client’s sole remedy, either (i) procure for Client the right to continue using the Solution, (ii) replace or modify the Solution so that it becomes non-infringing, or (iii) accept return of the Solution and give Client a refund of the fees paid by Client specifically for such Solution. Notwithstanding the foregoing, Thrive Global will have no obligation under this Section or otherwise with respect to any claim based upon (A) any use of a Solution not in accordance with this Agreement or for purposes not intended by Thrive Global, (B) any use of a Solution in combination with other products, equipment, software, or data not supplied by Thrive Global, or (C) any modification of a Solution by any person other than Thrive Global. Client will indemnify, defend and hold harmless Thrive Global from and against any third party claim arising out of related to an assertion that Client is not authorized to provide information (including Personally Identifiable Information) to Thrive Global hereunder. Client will pay those costs and damages incurred by Thrive Global that are specifically attributable to such claim. The foregoing obligations are conditioned on Thrive Global notifying Client promptly in writing of such claim, giving Client sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Client’s request and expense, assisting in such defense or settlement.  

10. Limitation of Liability.

EXCEPT FOR (A) LIABILITY ARISING OUT OF A BREACH BY CLIENT OF SECTION 4.1 OR 4.3, (B) A PARTY’S FULFILLMENT OF ITS INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 AND/OR (C) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATION PURSUANT TO SECTION 5, IN NO EVENT (I) WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE SOLUTIONS PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR (A) LIABILITY ARISING OUT OF A BREACH BY CLIENT OF SECTION 4.1 OR 4.3, (B) A PARTY’S FULFILLMENT OF ITS INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9 AND/OR (C) BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATION PURSUANT TO SECTION 5, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE SOLUTIONS PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PROPERLY PAYABLE BY CLIENT TO THRIVE GLOBAL IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PROVISIONS OF THIS SECTION 10 FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF THE FORM OF ACTION.

11. General. 

This Agreement will be binding upon the Parties, their successors, and permitted assigns. Without limiting the foregoing, neither Party may assign or transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that Thrive Global may assign or transfer this Agreement or all of its rights and obligations under this Agreement, without Client’s consent (a) to a successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of it business or assets to which this Agreement relates, (b) to a parent or Affiliate or (c) in connection with a change of control of Thrive Global. This Agreement will be construed in accordance with the laws of the State of New York (excluding its choice of law rules). Each Party agrees that disputes under this Agreement will be brought exclusively in courts located within New York County, New York. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party. Thrive Global may list Client’s name (including by displaying any Client’s trademark) and identify the business relationship between the Parties on Thrive Global’s website and in other marketing and advertising collateral, together with a list of other customers. It is hereby understood that disclosure of Client’s relationship with Thrive Global is a condition of this Agreement. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. No waiver of any breach of any term or condition of this Agreement will constitute a waiver of any subsequent breach. If any term will be held unenforceable, such term will be restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of this Agreement will remain in full force and effect. All notices under or related to this Agreement will be in writing and will reference the Agreement. Notices will be deemed given: (i) when delivered personally; (ii) when sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth in the Order Form or such other addresses designated pursuant to this Section 11. Neither Party is liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or unanticipated degradation, failure of third party networks or communications infrastructure, or other similar events beyond the reasonable control of a Party. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, Thrive Global does not guarantee the Solutions will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance. Nothing in this Agreement will be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the Parties. Each Party’s status hereunder is that of an independent contractor. Except as provided herein, neither Party will have the authority to obligate or bind the other Party in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date. This Agreement, together with all Order Forms, contains the entire agreement and understanding between the Parties and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions. No term of any Order Form will be deemed to amend the terms of this Agreement unless an Order Form references a specific provision in this Agreement. Any Order Form amending a term of this Agreement will amend such term only with respect to the Solutions performed pursuant to such Order Form. Client acknowledges and agrees that individual Users may be subject to, and bound by, supplemental or additional terms (“Other Terms”) governing a User’s personal use of the Solutions (e.g., end user license agreements), and such Other Terms will prevail in the event of a conflict with respect to such User’s use of the applicable Solution(s). 

12. Definitions.

12.1. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 

 12.2. “Applicable Privacy and Data Security Laws” means the following: (a) all privacy, security, and data protection laws, rules, and regulations of any applicable jurisdiction (including, without limitation, England, the U.S. and Canada), and all then-current industry standards, guidelines, and practices with respect to privacy, security, and data protection including the collection, processing, storage, protection, and disclosure of personal information; and (b) the applicable privacy policies of either Party as well as Client’s policies and guidelines applicable to any of the foregoing provided to Thrive Global in written form from time to time.

 12.3. “Personally Identifiable Information” means any information relating to an identified or identifiable User, excluding any information that a User expressly submits to Thrive Global in connection with a User interacting with the Solutions. An identifiable User is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.  

12.4. “Security Event” means an event where Client Materials or Confidential Information stored by Thrive Global is accessed or received by an individual or entity not authorized to access or receive such data or information.

Exhibit A — Solutions

1. SOLUTIONS

Such of the following Solutions as are specified in the Order Form:

2. CURRICULUM

Such of the following modules are as specified in the Order Form:

Thriving Performance 

Increase well-being to achieve and sustain peak performance.

Thriving Mind (with Stanford Medicine)

Build mental resilience using cutting-edge science.

Thriving Start 

Develop an onboarding experience that turns new hires into brand advocates.

Thriving Communication

Inspire more adaptable and higher performing teams with compassionate directness.

Thriving Parenthood (with Stanford Medicine) 

Support new parents through every phase of their journey so that they can be their best selves.

Thriving Culture 

Create a culture of inclusion and belonging to drive more creativity and innovation.

3. SOLUTION ELEMENTS DESCRIPTIONS

Such of the following elements as are contained within the Solution specified in the Order Form:

Live Workshops

Live delivery of proprietary training (half or full day) by experienced facilitators.

Thrive Academy

Web-based access to Thrive e-training courses as set out in the Order Form through a web-based e-learning platform.

Thrive Platform

A personalized guide to unlocking your greatest potential. Delivered through a mobile app available on Apple App Store or Google Play Store with microsteps and other features and content designed to support sustained behavior change. 

4. MEASURABLE IMPACT — ASSESSMENTS 

Included unless otherwise specified in the Order Form:

Thrive XM Index

An index which brings together an organization’s X-data (employee-reported people experience information) and O-data (HR-reported performance insights), and then explores their impact on business performance.

Pre- and Post-Pulse Assessments

Thrive delivers pre and pulse assessments via Qualtrics to users to determine how the Thrive experiences affect change in key well-being areas.

In Platform Ongoing Habit Assessments

Thrive platform delivers ongoing habit assessments to help users progress on their journeys. 

Custom Assessments (Premium Only)

Thrive Global can include custom questions with a premium package. 

5. CHANGE MANAGEMENT INTERNAL MARKETING

Included unless otherwise specified in the Order Form:

Change Management Internal Marketing

• Introductory video
• Communications toolkit
• Visual asset for posters, digital use

Custom Change Management Internal Marketing (Premium Only)

• Tailored assets to the Client’s internal communication channels developed in partnership. Likely to include custom videos, custom email templates, custom visual assets. 

Inside Out External Marketing (Premium Only)

• Public marketing program developed in accordance with Thrive Global’s brand studio, and designed to publicly showcase the Client’s wellness orientation

Exhibit B — Support Services

1. Definitions.

For the purposes of this Exhibit:

1. “Severe Issue” means an Error that causes a Solution to be unavailable to all visitors.
2. “Urgent Issue” causes a Solution to be unavailable to some visitors.
3. “Issue” shall mean an error, defect or omission that prevents the Solution’s successful operation in accordance with the applicable specifications.

2. Support Services

2.1. Clients must purchase support services as specified in this Section 2 (“Support Services”), which will include for the duration specified in the Sales Order:

a. Maintaining the Solutions so that they operate in conformity with all applicable Documentation;

b. Appointment of a Client Experience Representative;

c. Using commercially reasonable efforts to correct all Errors discovered or otherwise made known to Thrive Global;

d. Promptly providing Client with all modifications, refinements, corrections, and enhancements that Thrive Global incorporates into and makes a part of Solutions and does not separately price or market;

e. Providing support (i) for all Issues during Business Hours through Thrive Global’s worldwide support email [email protected] and (ii) for Severe Issues occurring outside Business Hours through calling your Client Experience Representative;

f. Notify Client within one (1) hour of becoming aware of a Severe Issue;

g. Using commercially reasonable efforts to provide a program fix or work-around for reported Solution related problems within two (2) days for Severe Issues and within three (3) days for Urgent Issue;

h. Emailing advance communication of planned outages;

i. Performing a quarterly business review;

j. Providing product performance feedback and optimization advice;

k. Providing early notification of product releases; and

l. Advocating for enhancement requests designed by Client.

3. Implementation Services

3.1. Client may agree to purchase professional services to support the implementation and/or integration of the product (“Professional Services”) as specified in this Section 3. Implementation Services will be performed using professional skill, care and experience at the Client’s direction and control and to the value set out in the Order Form.

3.2. Notwithstanding the assistance provided by Thrive Global pursuant to this Section 3, Client acknowledges that the implementation of the Solution is Client’s responsibility.

4. Client Responsibilities

4.1. To receive Support Services, Client must at all times fulfill the following responsibilities:

a. Training. Client must ensure that Client personnel are trained on the use of the Solutions and the application programs, operating systems and hardware on or with which the Solutions are used;

b. Systems. Client must provide and maintain in good operating condition any systems (including computers, operating systems and other facilities) specified by Thrive Global as being required for operation of the Solutions;

c. Instructions. Client must follow Thrive Global’s documented processes and procedures for use and administration of the Solutions; and

d. Cooperation. Client must allow Thrive Global reasonable access (at no charge) to Client’s systems to perform diagnostics and maintenance, including remote access.

5. Exclusions to Support Services.

5.1. Thrive Global will have no obligation of any kind to provide Support Services of any kind for problems in the operation or performance of the Solutions to the extent caused by any of the following (each, a “Client-Generated Error”):

a. non-Thrive Global software or hardware products (including without limitation, the operating systems, networks and facilities on which the Solutions operate) or use of the Solutions in conjunction therewith;

b. modifications to the Solutions made by any party without Thrive Global’s express written authorization;

c. Client’s use of the Solutions other than as authorized in this Agreement; or

d. Client’s use of Solutions other than the currently supported release(s) of the Solutions or any Error corrections or updates thereto provided by Thrive Global.

5.2. If Thrive Global determines that it is necessary to perform Support Services for a problem in the operation or performance of the Solutions that is caused by a Client-Generated Error, then Thrive Global will notify Client thereof as soon as Thrive Global is aware of such Client-Generated Error and, provided Thrive Global has obtained Client’s prior approval, Thrive Global will have the right to invoice Client at Thrive Global’s then-current published time and materials rates for all Support Services performed by Thrive Global to resolve such Client-Generated Error.

Exhibit C — Performance Standards

1. Performance Standards 

1.1. With respect to the relevant Solution identified in an Order Form, unless the Solution only operates on a User’s device, Thrive Global will use commercially reasonable efforts to ensure that all Solutions are available at least ninety-nine percent (99%) of the time over the course of a calendar month (“Availability”).

1.2. Unavailability caused by Client-Generated Errors, scheduled downtime or Force Majeure events is excluded from the calculation of Availability. Thrive Global will use commercially reasonable efforts to schedule downtime for routine maintenance of Solutions outside of business hours Pacific Time.

2. Service Credit

2.1. In the event Thrive Global fails to meet the Performance Standard for a Solution under an Order Form during two (2) or more consecutive months, Thrive Global will grant Customer a discount as follows:

a. Five percent (5%) discount off one twelfth of the Fees for the applicable Solution for the second consecutive month;

b. Ten percent (10%) discount off one twelfth of the Fees for the applicable Solution for the third consecutive month; and

c. Fifteen percent (15%) discount off one twelfth of the Fees for the applicable Solution for the fourth consecutive month and subsequent months thereafter.

The discount will be applied as a credit to future invoices.

3. Remedy. The discount as set forth in Section 2 above will be Client’s sole and exclusive remedy with respect to performance of the Solution and a failure to achieve the Performance Standard. Client must promptly notify Thrive Global if the Solutions are not meeting the Performance Standard and claim a credit within ten (10) Business Days of the end of the month in question.