This Partner (Online) Agreement (the “Agreement”) is entered into by and between Thankview, LLC (the “Company”) and the customer (the “Partner”) identified in the Partner (Online) Agreement Order Form (the “Order Form”). This Agreement governs the Partner's relationship with, and use of, the Company’s website, mobile application or content, and products and/or services made available by the Company (the “Thankview Platform”). This Agreement is effective as of the date the Partner clicks the “I Accept” button on the Order Form (“Effective Date”). If you are accepting on behalf of a Partner, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority to bind a Partner, please do not click the "I Accept" button on the Order Form.
1. Services and Support.
- Services. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Partner with the Services listed in the Order Form and reasonable customer support services.
- Technical Support. Subject to the terms hereof, Company will provide Partner with reasonable technical support services during regular business hours. Regular business hours are Monday through Friday, 9 AM EST to 9 PM EST.
- Site Maintenance. Our Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond our reasonable control. We will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Company guarantees that it will maintain an uptime of at least 99.99%.
- Acceptable Use and Suspension. Company retains the right to monitor large bulk messaging by Partner, as determined by the number of message recipients. Company retains the right to analyze Partner’s email database, apportion and stagger large bulk messaging, or suspend its Services if Partner’s: (i) bounce rate exceeds industry accepted percentage average of 10%, (ii) spam rate exceeds industry accepted percentage average of .1%; or (iii) if Partner’s use is not in compliance with Section 5(a)(i) or Section 5(a)(ii).
- ThankView is Continually Evolving. The Services may change from time to time, at our discretion for the purpose of testing platform improvements. We may test various different versions of the platform Services both in terms of the User and Admin experience on the Site, the ThankView email, and the ThankView landing page. We may create and add new features for ThankView and experiment with new features at any time. We may stop (permanently or temporarily) providing the Services or any features within the Services to you or to users generally. ThankView will inform the partner organization administrators of any major change made to how their organization's ThankView appears to their recipients. Partners will be given the ability to opt out of the testing before their ThankViews are sent.
- Additional Purchases. Over the course of this Agreement, Partner may purchase additional features or services for the ThankView application. Purchases may be confirmed through signed order form, email confirmation, or purchase within the ThankView application.
2. Fees and Payment.
- Fees; Payment. The fees owed by Partner to Company in connection with this Agreement are set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all fees and charges are due net thirty (30) days from the invoice date, and all payments made under this Agreement shall be in United States dollars. All amounts paid or payable hereunder are non-refundable.
- Termination for Nonpayment. If Partner’s account is overdue (except with respect to fees or charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies available to Company hereunder or at law or equity, Company reserves the right to, in its sole discretion, terminate this Agreement, provided that Company has provided Partner fifteen (15) days prior written notice of its intention to terminate the Agreement and Partner has failed to bring its account current during such period. Company shall have no liability to Partner as a result of any such termination of this Agreement.
- Taxes. Company's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Partner is responsible for paying all Taxes, excluding only taxes based on Company's income. If Company has the legal obligation to pay or collect Taxes for which Partner is responsible, the appropriate amount shall be invoiced to and paid by Partner to Company unless Partner provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Expenses. Except as otherwise set forth herein or mutually agreed by the parties in writing, each party will bear its own costs and expenses of its performance under this Agreement.
3. Intellectual Property/Licenses.
- License. Subject to Intellectual Property Ownership. Except as specifically set forth herein, each party shall retain all intellectual property rights in its intellectual property and for any works or materials which it creates in connection with this Agreement. Except as licensed herein, this Agreement does not transfer any intellectual property rights between the Parties. For clarification purposes (i) Partner retains all right, title and interest in any video messages sent by Partner (“Messages”) and replies to video message sent by Partner (“Replies”) using the Thankview Platform (collectively, Messages and Replies shall be referred to as “User Content”) and all derivative works thereof; and (ii) Company retains all right, title and interest in and to the Thankview Platform and all improvements and modifications thereto and all derivative works thereof. Other than as expressly set forth in this Agreement, no license or other rights in or to a party’s products, services or intellectual property is granted, and all such licenses and rights are hereby expressly reserved.
- License. Subject to the terms of this Agreement, Partner grants Company a perpetual, worldwide, transferable, non-exclusive license, together with the right to sublicense, to use, distribute (directly and indirectly), modify, extend, and make derivative works from any User Content, solely in connection with providing recipients of Partner’s Messages with access to the Thankview Platform and the ability to create Replies.
- Mark Usage Rights. Each party grants the other party a limited, nonexclusive, personal and non-transferable license to use its name, logos, graphics, trade names, service names, trademarks, slogans and other marks (collectively, “Marks”) for the purpose of promoting either the Thankview Platform or the Agreement contemplated herein. Company may not use Partner’s name and a sample video message for promotional in sale purposes to individual parties without notification or Partner’s prior approval. For all other purposes, before using Partner’s Marks in a promotional context, Company will notify Partner and request prior approval. Each party shall retain all right, title, goodwill and interest in and to its Marks and shall cease use of the other party’s Marks within five (5) days after written request from the other party.
- Suggestions. Partner may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to Company with respect to the Thankview Platform (collectively, "Suggestions"). Each Suggestion shall not, absent a signed, written agreement with Company, create an obligation of confidentiality for Company. Partner shall not give any Suggestion that is subject to license terms or restrictions that seek to require any Company technology, service, product or documentation incorporating or derived from such Suggestion, or any Company intellectual property, to be licensed or otherwise shared with Partner or any third party. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the parties, Company shall be free to use, disclose, reproduce, license or otherwise distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
4. Confidentiality; Proprietary Rights.
- Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business or organization (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Partner includes non-public data provided by Partner to Company to enable the provision of the Thankview Platform (“Partner Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Thankview Platform or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
- Partner Data. Unless otherwise provided in this Agreement, Partner shall own all right, title and interest in and to the Partner Data. Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Thankview Platform and related systems and technologies (including, without limitation, information concerning Partner Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Thankview Platform and for other development, diagnostic and corrective purposes in connection with the Thankview Platform and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
5. Representations and Warranties; Disclaimer.
- Partner Representations and Warranties. Partner represents and warrants as of the Agreement Date and for as long as this Agreement is in effect that:
- Partner may not use the ThankView Platform to send: (A) spam messages; (B) messages offering to sell, purchase, or distribute illegal goods or services; (C) pornographic or sexually explicit material; (D) malware or other material that you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive.
- This provision, (a)(iv), is for educational institution use only: If Partner is an educational institution, Partner certifies that it is FERPA-compliant with regards to education, personnel, student, and other records. Partner shall also define “school officials” and “legitimate educational interest” broadly enough, as permitted by FERPA, to permit Company to provide the Services to Partner. Company will maintain the confidentiality of personnel, Student, and other records in accordance with the requirements of applicable law.
- Partner will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Thankview Platform or any software, documentation or data related made; modify, translate, or create derivative works based on the Thankview Platform (except to the extent expressly permitted by Company or authorized within the Thankview Platform); use the Thankview Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
- Partner will obtain and maintain any equipment and ancillary services needed to connect to, access, or otherwise use the Thankview Platform, including, without limitation, video cameras, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
- Partner will use best efforts to secure its Equipment, Partner account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Partner account or the Equipment with or without Partner’s knowledge or consent.
- None of Partner’s Messages will infringe or violate any third party’s rights, including intellectual property rights, rights of publicity, or misappropriation of trade secrets.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS PRODUCTS OR SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONIFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Each Party shall defend, indemnify, and hold harmless the other Party, including its officers, directors, employees, stockholders, representatives, agents, successors and assigns, from and against any and all losses, damages, expenses, costs, claims, suits, proceedings, investigations, or other liabilities (including reasonable attorneys’ fees and costs of litigation and amounts awarded by a court of competent jurisdiction or agreed upon in settlement) arising out of (i) the actions or inactions of the Indemnifying party, including without limitation the negligence and willful misconduct of the Indemnifying party or its employees or agents, (ii) an allegation that either party has infringed on a copyright, or misappropriates a trade secret, or otherwise infringes, violates or misappropriates a third party’s intellectual property rights or rights of publicity.
- Neither party shall take action to settle any such claim, suit, or proceeding that would in any manner impose obligations (monetary or otherwise) on the other party without that party’s prior written consent.
7. Limitation of Liability.
- Limitation of Liability. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $500.
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO PARTNER FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY.
- Limitation of Action. Except for actions for breach of Sections 2 or 3 or failure to comply with indemnification obligations under Section 6, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
8. Third-Party Services.
Third Party Services. The Company may rely on third-party services (collectively, “Third Party Services” and individually a “Third Party Service”) to provide the Services, including but not limited to Stripe to handle payment processing, Digital Ocean and Amazon to host the Thankview Software, Twilio to send SMS messages, Ziggeo and JWPlayer for video recording and playback, and Facebook for social sharing. These third party services are not subject to any of the warranties, service commitments, or other obligations under this Agreement. The Company does not control any Third Party Services and will not be liable to the Partner for any damages arising out of or related to any Third Party Services. Company has no obligation to monitor or maintain Third Party Services, and may disable or restrict access to any Third Party Services at any time. By using or enabling any Third Party Service, Partner expressly permits the Company to disclose Proprietary Information to the extent necessary to utilize the Third Party Services. PARTNER’S USE OF THIRD PARTY SERVICE IS AT PARTNER’S OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICE (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY SERVICE)
Insurance. Company shall maintain in force at all times during the Term of this Agreement the following insurance: Commercial General Liability (“CGL”) insurance including bodily injury, property damage, premises, and contractual liability, with Partner endorsed as an Additional Insured upon request, with minimum limits of $1,000,000 per occurrence; Network Security and Privacy Liability/Cyber Liability insurance, with minimum limits of $1,000,000.
9. Term and Termination.
- Subject to earlier termination as provided below, this Agreement shall be effective as of the Effective Date and shall remain in full force and effect until the first anniversary of the Effective Date (the “Initial Service Term”). The Company shall contact Partner with a minimum of 90 days prior to the expiration of the Agreement to begin the renewal of the Agreement.
- In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days notice (or with fifteen (15) days notice in the case of nonpayment). All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability, including Sections 4 (Confidential Information & Proprietary Rights), 6 (Indemnification), 7 (Limitation of Liability), and 10 (Miscellaneous). Multi-year deals are subject to preferential pricing. For all multi year accounts that are paid annually, early termination will result in a fee of $1,000 or 15 percent of the remaining contract value, whichever is greater.
- Upon any termination or expiration of this Agreement, with or without cause: (i) each party shall immediately discontinue any use of the Marks of the other party and/or its products and services; (ii) the licenses set forth in Sections 3 and 4 shall terminate; and (iii) both parties shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the two parties under the terms of this Agreement.
- Relationship of Parties. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.
- Non-exclusive. Nothing contained in this Agreement shall be construed as creating an exclusive relationship between Partner and Company.
- Taxes. Each party shall be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity with respect to the net income recognized by such party in connection with this Agreement.
- Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the State of New York with respect to any actions arising in connection with this Agreement including, without limitation, actions for interpretation, enforcement, or breach hereof.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. This Agreement shall bind and inure to the benefit of the parties, their respective successors, and assigns.
- Waiver Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Force Majeure. Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure.
- Severability. If any provision of this Agreement shall be held illegal or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.