Last update: March 27, 2021
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ENROLLING IN THE THRIVEON AFFILIATE PROGRAM. BY SUBMITTING YOUR APPLICATION TO BECOME AN AFFILIATE OR BY USING THE PROGRAM (AS DEFINED BELOW), YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT SUBMIT AN AFFILIATE APPLICATION AND YOU WILL NOT BE ENROLLED IN THE THRIVEON AFFILIATE PROGRAM. THRIVE’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY THRIVE, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The ThriveOn Affiliate Program, as may be modified by Thrive from time to time (the “Program”), available through www.thriveon.com (the “ThriveOn Site”), is owned by THRIVE II, LLC. (“Thrive”) and powered by Ontraport (“Ontraport”). The Program is offered to you (“You”) under the following terms and conditions:
Program Enrollment; Sub-Affiliates. After going through the registration process for the Program, You will become enrolled in the Program, subject to the terms and conditions of this Agreement, and to Thrive’s approval, which Thrive may withhold or withdraw in its absolute discretion. You shall not establish or cause to be established any promotion that allows third parties to participate in the Program, unless You receive Thrive’s prior written approval in each instance.
User Data. In handling or processing User Data, You shall at all times comply with applicable laws and regulations, including, without limitation, GDPR and CCPA. You hereby represent, warrant and covenant to Thrive that You will not (i) disclose, sell, rent or otherwise make available any User Data (as hereinafter defined) to any third party, or (ii) use any User Data to target, promote or advertise the products, services or offerings of any third party. You shall take reasonable measures to protect the secrecy of, and avoid disclosure or unauthorized use of, User Data. The term “User Data” means any data You collect or obtain through the Program or otherwise about any ThriveOn Site user. Notwithstanding the foregoing, nothing set forth herein shall prevent You from using User Data You receive in connection with this Agreement to conduct aggregate analysis of usage of Your Site. You agree to comply with the terms and conditions set forth in Exhibit A attached hereto and incorporated herein by this reference.
Warranties. You hereby represent and warrant to Thrive that: (i) You are eighteen (18) years of age or older, have duly and validly executed this Agreement and it constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; and (ii) Your activities in connection with the Program do not and will not violate any applicable laws or regulations, or infringe on the rights of any third party.
Indemnity. You agree to defend, indemnify and hold Thrive and Ontraport, and their respective officers, employees, shareholders, successors and assigns, harmless (including court costs and attorneys’ fees) against any claims, damages, debts, settlements, expenses or liabilities of any type whatsoever arising out of (i) any breach of this Agreement, including, without limitation, any warranties provided herein, (ii) Your or Your Sub-Affiliates’ acts or omissions, or in connection with Your Site, including, without limitation, in connection with any violations of copyright, trademark, privacy, defamation, or anti-SPAM laws.
Intellectual Property. Except for the license granted in Section 2 herein, as between the parties, Thrive shall retain all rights, title and interests in and to the Links, the Content, the ThriveOn Site, any portion or element thereof, and any trademarks or service marks incorporated therein, and all other intellectual property rights related thereto. You will not represent or imply that You are Thrive, an agent of Thrive, or a part of Thrive or any of its associated companies, including ThriveOn, THRIVE II, LLC, Thrive Movement, Clear Compass Media, etc. You will not use for any purpose (including, without limitation, for so-called “keyword bidding”) or register (or make any filing with respect to) any Thrive trademarks or service marks, or names, internet domain names, trade dress or other designations similar thereto or derivative thereof anywhere in the world. Use of any Thrive trademarks or service marks hereunder and any associated goodwill shall inure solely to Thrive and its associated companies.
Termination. Thrive may terminate this Agreement immediately if You breach any provision hereof, or if Thrive receives a third-party complaint regarding Your Site or Your activities in connection therewith, the validity of such complaint to be determined by Thrive in its sole and absolute discretion. You may terminate this Agreement at any time for convenience. Sections 4 through 14 shall survive termination of this Agreement for any reason.
WARRANTY DISCLAIMER. NEITHER THRIVE NOR ONTRAPORT MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, THE ThriveOn SITE, OR THE AMOUNT OF FEES YOU WILL COLLECT HEREUNDER, AND EACH HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, NEITHER THRIVE NOR ONTRAPORT WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY INDIRECT, INCIDENTAL CONSEQUENTIAL DAMAGES, OR LOST PROFITS, OR (II) IN ANY CASE, FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO YOU HEREUNDER DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Miscellaneous. Thrive reserves the right to change its affiliate fees, policies, or the Program, and to modify this Agreement at any time by providing You with an email notice. You shall be responsible for reviewing and becoming familiar with any changes. If Thrive does not receive written notice of termination from You within five (5) business days after notice of changes, it will be assumed that You accept such changes. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Thrive's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. For all purposes of this Agreement, each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other, and shall not bind or attempt to bind the other to any contract. Except as otherwise set forth herein, all notices under this Agreement shall be in writing and shall be deemed to have been duly given when receipt is electronically confirmed, if transmitted by email, or upon receipt, if sent by certified or registered mail, return receipt requested. You may not assign this Agreement to any third party without Thrive’s prior written consent, and any purported assignment in violation of the foregoing shall be void and without effect. Thrive may assign this Agreement in whole or in part. Thrive will not be responsible for any delay in the performance of its obligations hereunder caused by any acts, omissions, or events beyond Thrive’s reasonable control. This Agreement represents the complete agreement and understanding between You and Thrive with respect to the subject matter hereof, and supersedes any other written or oral agreement. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of laws provisions thereof. Unless otherwise elected by Thrive, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the California state and U.S. federal courts having within their jurisdiction the location of Thrive’s principal place of business, and both parties hereby consent to such jurisdiction and venue. In any action to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
CLASS ACTION WAIVER. NEITHER YOU NOR THRIVE WILL HAVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN CONNECTION WITH THIS AGREEMENT OR THE WEBSITE.
Publicity. You may not disclose the existence or terms of this Agreement without Thrive’s prior written consent in each instance.
All links that mention or refer to Thrive, and all pages that include any Content, shall link to www.thriveon.com or any subdomain thereof. You may not use “fake gate” pages.
You may not make a purchase from, or a subscription to the ThriveOn Program a condition to other activities on Your Site.
You may not, without Thrive’s prior written consent in each instance, place Links or Content (i) in pop-up, pop-under or similar ads delivered by third-party software applications; (ii) in unsolicited e-mail or other types of spam, banner networks, counters, guestbooks, IRC channels or through similar Internet resources; or (iii) anywhere other than on Your website; and (iv) You may not embed or include the Content or Links in software applications (such as toolbars, add-ons and plug-ins).
Your use of Links shall at all times be in compliance with FTC disclosure requirements that material connections between advertisers and endorsers be disclosed. This means that any communication that provides an endorsement or assessment of Thrive’s products or services must prominently disclose the fact that You receive compensation for Qualified Purchases.
You may not post Links on websites or social media accounts that contain adult content, that promote alcohol, tobacco or firearms, that encourage hate speech, racial, sexual or gender discrimination, or that are otherwise offensive or violate applicable laws or regulations, as may be determined by Thrive in its sole discretion.
You may not send Links by means of a text message or SMS message using an autodialer except upon prior written permission from Thrive and only if You have obtained the prior express written consent of the recipient as required by applicable law, including, but not limited to, the Telephone Consumer Protection Act and its implementing regulations.
You may solicit prospective Thrive customers via email, provided in doing so You do not use deceptive practices and You comply with all applicable laws and regulations, including, without limitation, privacy laws and the CAN-SPAM Act of 2003. Without limiting the generality of the foregoing, You may only use double opt-in email lists.
All email transmissions must include (i) a working unsubscribe mechanism that is clear and conspicuous, (ii) a “from line” that accurately identifies the entity sending the email, (iii) a subject line that accurately reflects the content of the email, (iv) a clear and conspicuous identification that the email is an advertisement or solicitation, and (v) a valid physical postal address.
DATA PROCESSING AGREEMENT
To the extent that information that identifies or relates to an identifiable individual (“Personal Information”) received by You pursuant to the ThriveOn Affiliate Program Agreement (the “Agreement”) between You and THRIVE II, LLC (“Thrive”) is covered by the European General Data Protection Regulation (EU) 2016/679 (“GDPR”), You agree to Process (as defined below) such Personal Information subject to the terms and conditions of this Data Processing Agreement (“DPA”).
1. DATA PROCESSING AND PROTECTION
1.1. Limitations on Use. You will Process Personal Information received by You or on Your behalf in connection with the ThriveOn Affiliate Program (the “Program”) only (i) for the purpose of the Program and in accordance with the Agreement, or (ii) as needed to comply with law. The scope of Processing of Personal Information is as specified in the Agreement. “Process” or “Processing” means the collection, recording, organization, structuring, alteration, use, access, disclosure, copying, transfer, storage, deletion, combination, restriction, adaptation, retrieval, consultation, destruction, disposal, or other use of Personal Information.
1.2. Confidentiality. You will ensure that persons authorized to Process Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
1.3. Security. You will implement, maintain, monitor and, where necessary, update appropriate administrative, technical, and physical safeguards to protect Personal Information against anticipated threats or hazards to its security, confidentiality or integrity.
1.4. Data Breaches. You will notify Thrive without undue delay via agreed upon channels, whenever You learn that there has been a personal data breach (as defined in the GDPR). Taking into account the nature of Processing and the information available to You, You will assist Thrive at Thrive’s request in complying with Thrive’s notification obligations regarding personal data breaches as required by the GDPR.
1.5. Cross-Border Transfers. You may not transfer Personal Information to any country that is not recognized by the European Commission as providing an adequate level of data protection according to EEA standards or otherwise covered by EU-US or Swiss-US Privacy Shield frameworks.
1.6. Subprocessing. You are not authorized to transfer Personal Information to any third party for any purpose.
1.7. Requests or Complaints from Individuals. You will assist Thrive, at Thrive’s request, by appropriate technical and organizational measures with Thrive’s obligation to respond to data subjects’ requests to exercise their rights under the GDPR. Taking into account the nature of the Processing and the information available to You, You also will assist Thrive at Thrive’s request in meeting Thrive’s compliance obligations regarding carrying out privacy and data protection impact assessments and related consultations of data protection authorities.
1.8. Audit. Thrive may provide to You a security assessment questionnaire related to Your Processing of Personal Information, which You will accurately and promptly complete. Such a questionnaire may include questions seeking verification of compliance with the terms and conditions of this DPA. If, after the original security questionnaire assessment, Thrive determines that further assessment is warranted, Thrive may request, no more than annually and with 30 days prior written notice, at Thrive’s cost, an assessment with a scope to be mutually agreed. During such an assessment, Thrive may examine policies, procedures and other materials related to Your Processing of Personal Information. When responding to Thrive’s information or audit requests, You will inform Thrive if You believe that any of Thrive’s instructions regarding Processing would violate the GDPR or European Union Member State law.
1.9. Regulatory Investigations. Upon notice to You, You will assist and support Thrive in the event of an investigation by any regulator, including a data protection authority, or similar authority, if and to the extent that such investigation relates to Personal Information handled by You in connection with the Program. Such assistance will be at Thrive’s sole expense, except where investigation was required due to Your acts or omissions, in which case such assistance will be at Your sole expense.
1.10. Return or Disposal. At Thrive’s discretion, You will destroy or return all Personal Information to Thrive, unless applicable law requires storage of the Personal Information.
1.11. Adverse Changes. You will notify Thrive without undue delay if You: (i) have reason to believe that You are unable to comply with any of Your obligations under this DPA and You cannot cure this inability to comply within a reasonable timeframe; or (ii) become aware of any circumstances or change in applicable law that is likely to prevent You from fulfilling Your obligations under this DPA. In the event that this DPA, or any actions to be taken or contemplated to be taken in performance of this DPA, do not or would not satisfy either party’s obligations under the laws applicable to each party, the parties will negotiate in good faith an appropriate amendment to this DPA.
2. SEVERABILITY AND CONFLICTS. In the event any provision of this DPA is held to be invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision herein. This DPA is expressly incorporated into the Agreement. In the event of any conflict or inconsistency between the terms of this DPA and the Agreement or the Program terms and conditions, the terms of this DPA prevail.
3. SURVIVAL. Your obligations under this DPA will continue for so long as You continue to have access to, are in possession of or acquires Personal Information, even if all agreements between You and Thrive have expired or have been terminated.