READ CAREFULLY:THRIVENSOFT LLC. HEREINAFTER (“Thrivensoft”) WILL PROVIDE WEBSITE SOFTWARE DEVELOPMENT AND HOSTING SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT (“AGREEMENT”).
BY PAYING FOR, THE SERVICE, OR USING ALL OR ANY PORTION OF OUR SOFTWARE YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN Thrivensoft AND EITHER YOU PERSONALLY, OR THE COMPANY HEREINAFTER “End-User” OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACQUIRING THE SUBSCRIPTION AND SERVICES FOR..
IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT: DO NOT ACCESS THE THRIVENSOFT.COM WEBSITE AND DO NOT USE ANY SERVICES.
(the “Agreement”) is entered into by and between (“End-User”), and Thrivensoft LLC. (“Thrivensoft”) a Delaware Corporation located at P.O. Box 4561, Wilmington, DE 19807.
WHEREAS,Thrivensoft wishes to provide Website software development and hosting Services to End-User for End-User’s business presence on the internet as defined below;
WHEREAS,, End-User wishes to obtain the same services from Thrivensoft;
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Parties agree to the following terms and conditions:
2.1 The services consist of :
3.1 Thrivensoft agrees to conduct periodic website analysis of End-User’s Website, which analysis shall include testing for Performance, Accessibility, Best Practices, and SEO. Thrivensoft may add additional tests and markers. Thrivensoft in its sole discretion may make changes from time to time to affect the SEO optimization Thrivensoft shall respond to End-Users Request for any changes to the website after Thrivensoft receives notification of the request for change. Thrivensoft shall make the requested changes to the website. Thrivensoft will charge the End-User at our then current senior developer rate for the development time and charge for any third-party library or third-party service necessary to make the changes requested by the End-User.
4.1 It has the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "End-User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Thrivensoft finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Thrivensoft shall not be liable for any loss or damage resulting from Thrivensoft’s reliance on any instruction, notice, document or communication reasonably believed by Thrivensoft to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Thrivensoft reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
4.2 Thrivensoft has the right and authority to use any trademarked or copyrighted Copy that End-User submits to Thrivensoft for Use in the Website.
5.1 End-User understands and acknowledges that Thrivensoft’s responsibility to Manage its Website and hosting is contingent upon none of the following occurring:
5.2 End-User understands and acknowledges that Thrivensoft’s responsibility to Manage its Website and hosting is contingent upon all of the following occurring:
5.3 End-user understands and acknowledges the following with respect to SEO (search engine optimization) services.
6.1 Some of the features of this Site or the Services, including those Services that are hosted with Thrivensoft, may allow Your-Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“Your-Users Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with Your-Users Submissions, “Your-Users Content”). All content submitted through your Account is considered Your-Users Content. By posting or publishing Your-Users Content to this Site or to or via the Services, you represent and warrant to Thrivensoft that (i) you have all necessary rights to distribute Your-Users Content via this Site or via the Services, either because you are the author of the Your-Users Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the Your-Users Content, and (ii) the Your-Users Content does not violate the rights of any third party. You shall be solely responsible for any and all of your Your-Users Content or Your-Users Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
6.2 You acknowledge and agree that your End-User Submissions are entirely voluntary, do not establish a confidential relationship or obligate Thrivensoft to treat your End-User Submissions as confidential or secret, that Thrivensoft has no obligation, either express or implied, to develop or use your End-Users Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your End-User Submissions, and that Thrivensoft may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
6.3 Thrivensoft shall own exclusive rights (including all intellectual property and other proprietary rights) to any End-User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any End-User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
6.4 By posting, publishing, sending End-User Content to this Site or through the Services, you authorize Thrivensoft to use the intellectual property and other proprietary rights in and to your End-User Content to enable inclusion and use of the End-User Content in the manner contemplated by this Site and this Agreement. You hereby grant Thrivensoft a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your End-User Content in connection with this Site, the Services and Thrivensoft's (and Thrivensoft’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your End-User Content (with the exception of End-User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your End-User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your End-User Content terminate within a commercially reasonable time after you Terminate your services. You understand and agree, however, that Thrivensoft may retain (but not distribute, display, or perform) server copies of your End-User Content that have been removed or deleted. The above licenses granted by you in your End-User Content are perpetual and irrevocable.
7.1 Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. End-User acknowledges and agrees that from time to time, this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable, including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. End-User acknowledges and agrees that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
8.1 Thrivensoft reserves the right (but undertakes no duty) to decide whether any item of End-User Content is appropriate and/or complies with this Agreement. Thrivensoft may remove any item of End-User Content (whether posted to a website hosted by Thrivensoft or posted to this Site) and/or terminate a End-User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by Thrivensoft in its sole and absolute discretion), at any time and without prior notice. Thrivensoft may also terminate an End-User's access to this Site or the Services found at this Site if Thrivensoft has reason to believe the End-User is a repeat offender. If Thrivensoft terminates your access to this Site or the Services found at this Site, Thrivensoft may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
9.1 Thrivensoft reserves the right to cease offering or providing any of the Services at any time, for any or no reason, and without prior notice. Although Thrivensoft makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life ("EOL"). If that is the case, that product or service will no longer be supported by Thrivensoft, in any way, effective on the EOL date
9.2 In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you thirty or more days in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, Thrivensoft will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, prorated in-store credit, or a prorated refund, to be determined by Thrivensoft in its sole and absolute discretion. Thrivensoft may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
10.1 End-User agrees to pay all amounts due for Products, Services, Subscriptions and Fees. All amounts are non-refundable.
10.2 The term of this Agreement shall be two (2) years (the “Initial Term”). If this Agreement is terminated within the Initial Term, End-User shall be liable to Thrivensoft for all payments remaining under the Agreement during the Initial Term, which shall not exceed the equivalent of 24 monthly payments. Following the expiration of the Initial Term, the Agreement shall automatically extend for subsequent two-year periods (“Subsequent Terms”), subject to the right of either Party to terminate this Agreement for any reason with one (1) month’s prior written notice to the other Party. If the Agreement is terminated during any Subsequent Term, End-User shall be liable to Thrivensoft for all payments remaining under the Agreement during the Subsequent Term, which shall not exceed the equivalent of 24 monthly payments.
10.3 You further agree that the The default termination term will be 39 days. Termination by End-User can occur by End-User defaulting on any payment. If Thrivensoft is unable to process payment on End-Users current credit card on file, Thrivensoft will send an payment failure notification email to the End-Users Email address on file every other day for default termination term alerting the End-User to Update their credit card information on file. After the expiration of the default termination term. Your account will be suspended, The subscription will be canceled, End-User shall be liable to Thrivensoft for all payments remaining under the Agreement during the Subsequent Term, which shall not exceed the equivalent of 24 monthly payments. Any Data of End-Users Data including but not limited to Customer data, order data, Schedules, documents and legal agreements shall be held for a period no longer than 30 days after the default termination term. After the expiration of the 30 days if Thrivensoft has not received payment in full, End-User Agrees that Thrivensoft has no obligation to save or retain End-Users Data.
10.4 Thrivensoft reserves the right to change its prices and fees at any time, and such changes shall be posted online at this Site and effective immediately without need for further notice to you.
10.5 You may pay for Services by using a valid credit card. Your Payment Method on file must be kept current and valid if you have any active Subscription Services in your Account. In addition, you agree that the location for the processing of your payments may change for any reason, including the type of Payment Method chosen, the currency selected, or changes or updates made to your Payment Method.
10.6 You agree that where refunds are issued to your Payment Method, Thrivensoft's issuance of a refund receipt is only confirmation that Thrivensoft has submitted your refund to the Payment Method charged at the time of the original sale, and that Thrivensoft has no control over when the refund will be applied towards your Payment Method’s available balance. You further acknowledge and agree that the payment provider and/or individual issuing bank associated with your Payment Method establish and regulate the time frames for posting your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer.
10.7 In the event a refund is issued to your Payment Method and the payment provider, payment processor or individual issuing bank associated with your Payment Method imposes any limitations on refunds, including but not limited to, limitations as to the timing of the refund or the number of refunds allowed, then Thrivensoft, in its sole and absolute discretion, reserves the right to issue the refund either (i) in the form of an in-store credit; (ii) via issuance of a Thrivensoft check, which will be sent to the mailing address on file for your Account; or (iii) in some jurisdictions, as a bank transfer, when the payment processor cannot refund back to the Payment Method. Thrivensoft also has the right to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the Payment Method.
10.9 If you are being billed on a monthly basis, your monthly billing date will be based on the date of the month you purchased the Services, unless that date falls after the 28th of the month, in which case your billing date will be the 28th of each month.
10.9 Other than as required by applicable law, Thrivensoft does not retain hard copies or electronic versions of mandate, standing order or standing instruction forms and/or any signed consents relating to your usage of our auto-pay services, and we are therefore unable to provide any such document upon request.
10.10 IN ADDITION, THRIVENSOFT MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATER SERVICES” SUPPORTED BY YOUR CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON YOUR BANK’S PARTICIPATION). IF WE ARE UNABLE TO SUCCESSFULLY CHARGE YOUR EXISTING PAYMENT METHOD, YOUR CREDIT CARD PROVIDER (OR YOUR BANK) MAY NOTIFY US OF UPDATES TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE YOUR NEW CREDIT CARD ON OUR BEHALF WITHOUT NOTIFICATION TO US. IN ACCORDANCE WITH RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT WE ARE NOTIFIED OF AN UPDATE TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, THRIVENSOFT WILL AUTOMATICALLY UPDATE YOUR PAYMENT PROFILE ON YOUR BEHALF. THRIVENSOFT MAKES NO GUARANTEES THAT WE WILL REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) CANCELING PRODUCTS AND (II) ENSURING YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO, MAY RESULT IN THE INTERRUPTION OR LOSS OF SERVICES, AND THRIVENSOFT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
10.11 If for any reason Thrivensoft is unable to charge your Payment Method for the full amount owed, or if Thrivensoft receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that Thrivensoft may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf. Thrivensoft also reserves the right to charge you reasonable “administrative” fees" for (i) tasks Thrivensoft may perform outside the normal scope of its Services, (ii) additional time and/or costs Thrivensoft may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by Thrivensoft in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by Thrivensoft staff or by outside firms retained by Thrivensoft; (iii) recouping any and all costs and fees, including the cost of Services, incurred by Thrivensoft as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with Thrivensoft.
11.1 All notices required under this Agreement shall be deemed sufficient if delivered to: For Thrivensoft: P.O. Box 4561 Wilmington, DE 19807,by United States Postal Service Certified Mail, Return Receipt Requested. and for End-User when delivered to the email address listed in the End-Users Account.
12.1 IN NO EVENT SHALL Thrivensoft, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM
(I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT Thrivensoft IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.(XI)
12.2 IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY DEFAULT ON THE PART OF THRIVENSOFT UNDER THIS AGREEMENT, IF SUCH DEFAULT BE ACKNOWLEDGED BY THRIVENSOFT OR FOUND BY ANY ARBITRATOR OR COURT OF COMPETENT JURISDICTION, SHALL BE ANSWERABLE WITH A SINGLE AWARD OF LIQUIDATED DAMAGES IN THE SUM OF TWO HUNDRED FIFTY ($350.00) DOLLARS, AND END-USER COVENANTS TO INDEMNIFY AND SAVE HARMLESS THRIVENSOFT FROM ANY COST OR EXPENSE (INCLUDING END-USER’S REASONABLE ATTORNEY FEES) ARISING OUT OF ANY ATTEMPT BY END-USER TO RECOVER CONSEQUENTIAL DAMAGES OR DAMAGES IN EXCESS OF THE LIQUIDATED DAMAGES STIPULATED HEREIN.
12.3 THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
13.1 End-User agrees that Thrivensoft is not an insurer and that no insurance coverage is offered hereunder. Payments by End-User are for the Development hosting and Management of End-Users website. End-User acknowledges that there are no guarantees that it’s website, or Thrivensoft’s management thereof, will increase traffic or increase sales, or reduce the risk of a loss.Thrivensoft is not assuming responsibility, and therefore shall not be liable to End-User, for any loss or damage suffered by End-User as a result of loss of revenue, or any other cause whatsoever, regardless whether such loss was caused by or contributed to by Thrivensoft’s negligence or failure to perform any obligation hereunder.
14.1 You agree to protect, defend, indemnify and hold harmless Thrivensoft and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Thrivensoft directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
15.1 Thrivensoft makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
16.1 Disputes. The terms of this Section shall apply to all Disputes between you and Thrivensoft, For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Thrivensoft arising under or relating to any Thrivensoft Services or Products, Thrivensoft’s websites, these Terms, or any other transaction involving you and Thrivensoft, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND Thrivensoft AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR Thrivensoft FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
16.2 Binding Arbitration. You and Thrivensoft further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §2, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 8 of this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
16.3 Dispute Notice. In the event of a Dispute, you or Thrivensoft must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Thrivensoft must be addressed to: Thrivensoft LLC, P.O. box 4561, Wilmington, DE 19807 Attn.: Legal Department (the “Thrivensoft Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Thrivensoft and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Thrivensoft may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
16.4 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND Thrivensoft AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR Thrivensoft WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
16.5 Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 12 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in Wilmington, Delaware.
17.1 Headings. The titles and headings of this Agreement are for ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
17.2 Amendments This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, representations or agreements, whether written or oral, relating to the subject matter hereof, and there are no understandings or agreements that are not fully set forth herein.
17.3 Severability.The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
17.4 Waiver. No waiver of any breach of any provision of this Agreement shall be deemed a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement.
17.5 Choice of Law. This Agreement shall be interpreted under and construed in accordance with the laws of the State of Delaware, without regard to principles governing conflicts of law. The Parties unconditionally submit themselves and their respective property in any legal or equitable action or proceeding to the jurisdiction of the courts in and of the State of Delaware and waive any objection that the Parties now or hereafter may have to the venue to such action or proceeding.
17.6 Jury Trial. The Parties hereto waive their respective rights to have a trial by jury. Any action or proceeding by either Party to this Agreement against the other arising under this Agreement or from either Party’s performance thereunder, must be commenced within one (1) year from the date of the accrual of the cause of action or the claim shall be barred.
17.7. Successors And AssignsThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
17.8. No Third-party BeneficiariesNothing in this Agreement shall be deemed to confer any third-party rights or benefits.
If you have any questions about this Agreement, please contact at the following address:
Thrivensoft Legal Department