1. Modifications of this Agreement
2. Website Access
2.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Thrive hereby grants you permission to use the Website only as set forth in this Agreement, and provided that: (i) you will not copy or distribute any part of the Website in any medium without Thrive's prior written authorization; (ii) you will not alter or modify any part of the Website other than as expressly authorized and then only for such express purpose; (iii) you may not circumvent, disable, violate or attempt to violate, or otherwise interfere with the security or integrity of the Website, the proper operation of the Website, the features that prevent or restrict use or copying of any Content (as the term is defined below) or enforce limitations on use of the Website or the Content therein, or interfere with any activity being conducted on the Website; and (iv) you may not decompile, disassemble or reverse engineer any of the software comprising or in any way making up part of the Website.
2.3 You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Website in a manner that sends more request messages to Thrive’s servers in a given period of time than a single human can reasonably produce in the same period by using a conventional web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any unauthorized commercial solicitation purposes. Unless expressly authorized by the applicable user, you agree not to solicit, for commercial purposes, any users of the Website with respect to their "User Submissions," as that term is defined below. You agree that your User Submissions both will not involve the transmission of "junk mail," "chain letters," "spamming," or other unsolicited mass mailings, and will not contain restricted or password only access pages or hidden pages or images.** **Thrive reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Thrive 's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.
3. Intellectual Property Rights
The content on the Website, including without limitation, the text, software, scripts, graphics, files, images, photos, sounds, music, videos, interactive features and the like (collectively "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Thrive, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Thrive reserves all rights not expressly granted in and to the Website and the Content. For clarity, as between you and Thrive, you retain ownership of the User Submissions that you create. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content, Marks, third party User Submissions, or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, or (ii) in any way that violates any right of any third party. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
This Agreement shall remain in full force and effect while you use the Website. You may terminate your use of the Website or your membership at any time by emailing: [email protected] Thrive may terminate your access to the Website or your membership at any time, for any reason, and without warning. Sections 2.3, 3, 6.2. through 6.6, and 8 through 15 shall survive termination of this Agreement for any reason.
5. Fees; Store; Carrier Fees
5.1 Certain services and features of the Website are made available in exchange for fees. Thrive may charge fees for all or some of the Website’s services in its sole discretion. Such fees are not refundable. If Thrive terminates your registration or membership because of your breach of the Agreement, you may be entitled to a refund of any unused portion of such fees to the extent required under applicable law.
5.2 You may purchase products and services directly from Thrive on the Website. Product and service descriptions and specifications are subject to change. Product and service descriptions, prices and other information on the Website may contain typographical errors or may be incorrect, incomplete or not current. Thrive periodically adds, updates and corrects the information in the Website store without notice.
5.3 Thrive may make available a service through which you can receive messages on your wireless device via short message service ("SMS"). You represent that you are the owner or authorized user of the wireless device on which messages will be received, and that you are authorized to approve any applicable charges. In addition to any fee of which you are notified, your provider's standard messaging rates apply to our confirmation and all subsequent SMS correspondence. All charges are billed by and payable to your mobile service provider. Thrive will not be liable for any delays in the receipt of any SMS messages, as delivery is subject to effective transmission from your network operator.
6. User Submissions
6.1 The Website may also permit users to post their own content on the Website ("User Submissions"). You understand that whether or not User Submissions are published, Thrive does not guarantee any confidentiality with respect to any such submissions.
6.2 You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. You agree that Thrive has no liability with respect to any User Submissions, including, without limitation, your own submissions, and you hereby irrevocably release Thrive and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to User Submissions or any part thereof. In connection with your User Submissions, you affirm, represent, and warrant that you can and will demonstrate to Thrive's full satisfaction upon its request that the posting of your User Submission on or through the Website does not violate the privacy rights, publicity rights, copyrights, contract rights, or any other rights of any person or entity. You agree to pay all royalties, fees, and other monies owing any person or entity by reason of any content posted by you to or through the Website. By submitting your User Submissions to the Website, you give Thrive all non-exclusive rights and licenses necessary to use and otherwise exploit such User Submissions for any purpose in connection with the Website and Thrive’s other related services. These rights are irrevocable, but you remain the owner of the User Submissions that you create. You also hereby do and shall grant each user of the Website a non-exclusive license to access your User Submissions through the Website, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under this Agreement.
6.3 In connection with User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations; (ii) submit material that is unlawful, obscene, lewd, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, excessively violent, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; (iii) post advertisements or solicitations of business; or (iv) impersonate another person. Thrive does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Thrive expressly disclaims any and all responsibility or liability in connection with User Submissions.
6.4 Thrive reserves the right to decide whether Content or a User Submission is inappropriate, or violates this Agreement, including without limitation, due to violations of intellectual property law, pornography, obscene or defamatory material, or excessive length. Thrive also reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages and User Submissions) by you, or to restrict, suspend or terminate your access to all or any part of the Website at any time, for any reason, without prior notice. Notwithstanding the foregoing, Thrive assumes no responsibility for monitoring the Website, Content, or User Submissions for inappropriate conduct, or modifying or removing such conduct, Content or User Submissions from the Website.
6.5 It is Thrive's policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders.
6.6 Thrive reserves the right to discontinue any aspect of the Website at any time.
7. Product and Service Offerings
Certain products and services featured on the Website are offered by third parties (“Merchants”). When you select a Merchant’s product or service featured on the Website, you are redirected to the Merchant’s website. Any purchase is made directly from such Merchant, not from Thrive, though Thrive may earn a commission from the Merchant when you make a purchase through a link on the Website or using a promotional code provided by Thrive. Product and service descriptions and specifications are subject to change. Product and service descriptions and other information on the Website may be incorrect, incomplete or not current. Thrive assumes no responsibility for the accuracy of such information.
8. Third-Party Websites
9. WARRANTY DISCLAIMER
THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE WEBSITE IS NOT INTENDED AS MEDICAL, LEGAL OR FINANCIAL ADVICE. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR SERVICES FROM A QUALIFIED PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. YOUR USE OF THE WEBSITE IS SUBJECT TO THE ADDITIONAL DISCLAIMERS AND CAVEATS THAT MAY APPEAR THROUGHOUT THE WEBSITE AND ARE INCORPORATED HEREIN BY THIS REFERENCE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Thrive, ITS SUPPLIERS AND LICENSORS, THE MERCHANTS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER Thrive NOR ITS SUPPLIERS NOR LICENSORS, NOR ANY MERCHANTS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE WEBSITE, OR ASSUME ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
Thrive DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY ADVERTISING, AND Thrive WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF CONTENT, PRODUCTS OR SERVICES. THE WEBSITE IS CONTROLLED AND OFFERED BY Thrive FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. Thrive MAKES NO REPRESENTATIONS THAT THE WEBSITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEBSITE FROM OTHER JURISDICTIONS ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
You agree to defend, indemnify and hold harmless Thrive, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, demands, and expenses (including but not limited to, attorneys' fees) arising from: (i) your use of and access to the Website or any Content that you post thereon; (ii) your violation of any term of this Agreement or of your representations and warranties set forth herein; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party.
By using the Website, you represent and warrant that (i) all registration information you submit is accurate and truthful; (ii) you will maintain the accuracy of such information; (iii) you are 18 years of age or older (if you are agreeing to these terms and conditions on behalf of a minor, you certify to Thrive that you are such minor’s legal guardian); and (iv) your use of the Website does not violate any applicable law or regulation. Your membership may be terminated without warning if Thrive believes that you are under 18 years of age or that your legal guardian did not authorize your Website membership.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL Thrive, ITS SUPPLIERS, merchants, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Thrive IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SUBJECT TO THE FOREGOING, Thrive'S LIABILITY TO YOU FOR ANY REASON, WILL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO Thrive FOR SERVICES IN CONNECTION WITH THE WEBSITE.
YOU SPECIFICALLY ACKNOWLEDGE THAT Thrive SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. furTHER, THRIVE ASSUMES NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE WEBSITE. THRIVE WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE WEBSITE.
You may not transfer or assign this Agreement or any rights and licenses granted hereunder without Thrive's prior written consent; any purported assignment in violation of the foregoing shall be void and without effect. Thrive may freely transfer, assign, or delegate this Agreement, and any of its rights or obligations hereunder.
14. Dispute Resolution
14.1 Arbitration. If there is any dispute about or involving the Website, you agree that the dispute shall be governed by the laws of the State of California, without regard to conflict of laws provisions thereof or to the 1980 U.N. Convention on contracts for the international sale of goods. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco, California, using the English language, by one commercial arbitrator(s) with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Judgment on the award may be entered in any court of competent jurisdiction. In addition, either party may seek, from a court of competent jurisdiction in Santa Clara County, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. Any dispute or portion thereof, or any claim for a particular form of relief (not otherwise precluded by any other provision of this Agreement), that may not be arbitrated pursuant to applicable state or federal law may be heard only in a court of competent jurisdiction in Santa Clara County. The parties waive any claim of inconvenient forum.
14.2 Right to Reject. You may reject Section 14.1 by mailing a signed rejection notice to Thrive at ThriveOn, P.O. Box 40, Capitola, CA 95010 within thirty (30) calendar days after you first use of the Website. Any rejection notice must include your name, address, email address and telephone number. Any rejection of Section 14.1 by you will not affect any other provision of this Agreement.
14.3 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.** **Further, unless both you and Thrive agree otherwise in writing, the arbitrator may not join or consolidate claims under this Agreement with claims of any other persons. The arbitrator shall have no authority to conduct any class, private attorney general or other representative proceeding, and shall award declaratory or injunctive relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a determination is made in a proceeding that the class action waiver is invalid or unenforceable, only the foregoing sentence will remain in force and the remainder of this Section shall be null and void, provided, that the determination concerning the class action waiver shall be subject to appeal.
If any provision of this Agreement is deemed invalid or unenforceable by an arbitrator or court of competent jurisdiction, the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect. 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. YOU AND Thrive AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.