Terms of Service – Thrive MyeliNet

SUBSCRIPTION TERMS OF SERVICE

These MyeliNet Subscription Terms of Service (the “Terms”) apply to and are incorporated by reference into the ordering document(s), including but not limited to any sales quotes or online orders for MyeliNet subscriptions or free trials (the “Order”) made by and between Thrive Place, L.P., (“Thrive“) and the Client identified in the Order. Each person accepting and/or executing these Terms represents and warrants that he or she has the power and authority to accept and bind Client entity to these Terms.

Definitions

Definitions not otherwise defined in the text of these Terms shall have the meanings set forth below:

“Affiliate(s)” means the corporate or legal entities controlling, controlled by, or under common control with a Party.
“Client Data” means any information, documents, files, materials, tracked data, records and/or data (including any metadata) relating to Client or its Affiliates and Users (including Patient Data, as defined herein but excluding Thrive data): (i) provided to Thrive for upload, storage, use, access and/or processing (whether during the initial migration or otherwise during the Term); and/or (ii) obtained, developed, acquired or processed by Thrive (including, without limitation, all content, websites, data, information, analytics, domain names, software and electronic systems), by or through the Thrive System or in furtherance of the MyeliNet Services.
“Client Property” means Client Data, Patient Data, Reports and all other of Client’s Confidential Information, and all IP Rights in any of the foregoing.
“Confidential Information” means any non-public information of or relating to either Party, their respective Affiliates and/or Patients (as defined below) including, but not limited to, the Client Property, Personal Data, Patient Data, business plans, strategies, forecasts, analyses, financial information, information technology information, trade secrets, and other proprietary information or data, regardless of the manner or medium in which it is furnished to or otherwise obtained by the disclosing party and including all information exchanged between the Parties regarding proposed business, regardless of whether the Parties enter into a definitive agreement regarding such proposed business.
“Documentation” means all user manuals, handbooks, specifications, and written or on-line materials relating to the functionality of the Thrive System that are generally supplied or made available by Thrive in connection with the Thrive System and the MyeliNet Services.
“Fees” means the total costs, fees and expenses to be paid for the MyeliNet Services, as specifically set forth in each Order.
“HIPAA Privacy Notice” means Thrive’s Health Insurance Portability and Accountability Act privacy notice located at www.myelinet.com, as such notice may be amended, modified, restated or replaced from time to time, and incorporated herein by this reference.
“IP Rights” means any patent, copyright, trademark, technical information, know-how, trade secret, proprietary information, or other intellectual property right(s), whether currently existing or hereafter developed or acquired, and regardless of the jurisdiction or location where such right(s) exist.
“MyeliNet Services” means Thrive’s internet-based, hosted solution as further identified in the applicable Order and as further described in the applicable Documentation and such other functionality provided by Thrive to its clients through the use of the Thrive System from time to time as part of maintenance and support of the internet-based, hosted solution.
“Patient” means any previous, existing or potential patient of Client.
“Patient Data” means any information, documents, files materials, records and/or data (including any metadata) that Client, Users or Patients, provide to Thrive (or is obtained, developed, acquired or processed by Thrive) through the MyeliNet Services (including Personal Data), relating to any Patient.
“Personal Data” includes any information that can be associated with or traced to any individual, including an individual’s name, address, complete telephone number, e-mail address, social security number, or other similar specific factual information, regardless of the media on which such information is stored (g., on paper or electronically).
“Privacy Policy” means Thrive’s privacy policy located at www.myelinet.com, as such policy may be amended, modified, restated or replaced from time to time, and incorporated herein by this reference.
“Reports” means written or computerized reports, bills, invoices, applications or other documents that are generated by the Thrive System or MyeliNet Services, or other tangible (including electronic) deliverables (hard or soft copy) created and/or delivered pursuant to the MyeliNet Services.
“Term” is defined is Section 4(a) below.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the MyeliNet Services that are not proprietary to Thrive.
“Thrive Property” means the Thrive System and Documentation, including any IP Rights offered therein, but in all circumstances expressly excluding any Client Property.
“Thrive System” means Thrive’s software applications, hardware, equipment, servers and systems used in providing the MyeliNet Services.
“Use” means to use, provide, display, access, perform, and test the MyeliNet Services for Client’s business use.
“User” means an individual who is authorized by Client to use the MyeliNet Services, for whom Client has purchased a subscription, and to whom Client (or, when applicable, Thrive at Client’s request) has supplied a user identification and password (for MyeliNet Services utilizing authentication). Users may include, for example, therapists, Patients, parents, guardians or other immediate family members of Patients, employees, consultants, contractors and agents of Client, and third parties with which Client transacts business.

Use of the MyeliNet Services
1. Unless otherwise provided in the applicable Order, (a) MyeliNet Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
2. Usage Limits. MyeliNet Services are subject to usage limits specified in the Order. Unless otherwise specified, (a) a quantity in an Order refers to Users, and the MyeliNet Services may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order, a User identification may only be reassigned to a new individual replacing one who will no longer Use the MyeliNet Services. If Client exceeds a contractual usage limit, Thrive may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, notwithstanding Thrive’s efforts, Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order for additional quantities of the applicable MyeliNet Services promptly upon Thrive’s request, and/or pay any invoice for excess Use in accordance with the Section 3
3. Client Responsibilities. Client will (a) be responsible for Users’ compliance with these Terms, Documentation, Privacy Policy and Orders, (b) be responsible for the accuracy, quality and legality of Client Data and the means by which Client and the Users acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or Use of MyeliNet Services, and notify Thrive promptly of any such unauthorized access or Use, and (d) Use MyeliNet Services only in accordance with these Terms, Documentation, Privacy Policy, the Orders and applicable laws and government regulations.
4. Third Party Services. The MyeliNet Services may be available through, or in connection with, independent third-party service providers. When Client uses such third-party services in connection with the MyeliNet Services, the third party’s applicable terms of use and privacy policies will apply, and not these Terms, to Client’s use of such third-party services.
Fees, Invoicing and Payment
1. Client shall pay Thrive any Fees in the amount and for the subscription duration set forth in the applicable Order. Client acknowledges that Fees paid by credit or debit card are processed via a third-party service provider subject to the terms of Section 2(d) above. Client shall be responsible for ensuring that no credit or debit card information or other financial account information are uploaded or stored in with MyeliNet Services.
2. Invoice Issuance and Taxes. Thrive will issue written invoice(s) to Client for the Fees due in accordance with these Terms and the applicable Order. Invoices shall be rendered at the time or times specified in the applicable Order. The Parties will mutually agree upon the reasonable detail and categories of information to be contained in the invoices. All Fees and other amounts payable by Client pursuant to these Terms or an Order are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Thrive’s income.
3. Payment Due Date. All invoiced amounts invoiced under these Terms and the applicable Order are due thirty (30) days after Client’s receipt of the invoice.
4. Late Payment. If Client fails to make any payment when due then, in addition to all other remedies that may be available: (i) Thrive may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (ii) Client shall reimburse Thrive for all reasonable costs incurred by Thrive in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (iii) if such failure continues for ten (10) days following written notice thereof, Thrive may suspend performance of the MyeliNet Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other person or entity by reason of such suspension.
5. No Deductions or Setoff. All amounts payable to Thrive under these Terms or an Order shall be paid by Client to Thrive in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
6. If any travel or additional expenses are necessary for the performance of the MyeliNet Services, the costs associated therewith shall be borne by Client and the parties shall mutually agree in writing (express email is acceptable) to the terms prior to occurring.
Term and Termination
1. Following expiration of the initial subscription term, whether monthly, annually, or multi-year, (the “Initial Subscription Term”) Client’s subscription will automatically renew for successive terms of the same duration (each a “Renewal Term”) unless either party provides written notice of non-renewal at least thirty (30) calendar days prior to the expiration of the Initial Subscription Term or any subsequent Renewal Term; provided, however, that for multi-year subscriptions, the Client may opt-out of auto-renewal by providing thirty (30) days advance written notice prior to the end of the Initial Subscription Term to Thrive. The Initial Subscription Term and Renewal Term(s) shall be collectively referred to herein as “Term.” Thrive may raise subscription Fees at any time after the expiration of the Initial Subscription Term based on the then-current List Pricing.
2. Termination Rights. In addition to a Party’s other termination rights and remedies specified in these Terms:
  1. Either Party may immediately terminate these Terms, and/or an Order incorporated by reference into these Terms, at any time by providing notice in writing to the other Party where the other Party commits a material breach of its obligations under these Terms or such Order, and such other Party fails to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-defaulting Party and a demand for cure.
  2. Either Party may terminate these Terms, upon written notice and without judicial or administrative resolution, if the other Party becomes insolvent or enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights.
3. Effect of Termination. Upon the expiration or termination of these Terms in their entirety for any reason whatsoever, Thrive shall cease providing the MyeliNet Services and Client and its Users shall cease all Use of the MyeliNet Services and shall be liable for payment of Fees for MyeliNet Services performed and delivered prior to such date of termination. In addition, the Parties will comply with the provisions of Section 5 as it pertains to the return or destruction of Confidential Information.
Confidentiality
1. “Confidential Information” includes all non-public information (including “Client Property”) exchanged by and between the disclosing party and the receiving party pursuant to these Terms. Disclosure of Confidential Information shall not confer on the receiving party or its Representatives (as defined herein) any right, title or license to such Confidential Information.
2. Receiving Party Obligations. The receiving party shall protect the Confidential Information of the disclosing party using the same degree of care, but not less than a reasonable degree of care, that the receiving party uses to protect its own confidential information of like nature, to prevent the unauthorized use, disclosure, dissemination, or publication of such Confidential Information. The receiving party shall not use or make available in any form the Confidential Information of the disclosing party to any other party other than its employees, accountants and attorneys (collectively, the “Representatives”) whose job performance requires such access, and the receiving party shall take the necessary steps to ensure that any persons permitted access to such Confidential Information are legally bound to hold such Confidential Information in trust and confidence without further disclosure to any third party. The receiving party shall use the Confidential Information of the disclosing party only for the express purposes set forth in these Terms, and the receiving party acknowledges and agrees that the disclosing party might be irreparably harmed if any Confidential Information were to be disclosed to a third party, and further agrees that the disclosing party shall have the right to seek injunctive relief upon any violation or threatened violation of this Section 5, in addition to all of the rights and remedies available at law or in equity.
3. Compliance with Laws. Notwithstanding the provisions set forth immediately above, the receiving party may disclose the disclosing party’s Confidential Information to the extent required pursuant to an order or judgment of any court or governmental body or pursuant to any law, rule or regulation, provided it gives advance notice (if permitted by law) and cooperates in any effort by the disclosing party (at the disclosing party’s expense) to obtain confidential treatment for the information. The receiving party shall cooperate with the disclosing party (at the disclosing party’s expense) regarding the form, nature, content and purpose of such disclosure or any action which the disclosing party may reasonably take to challenge the validity of such requirement.
4. The restrictions and obligations relating to the protection of Confidential Information, shall not apply with respect to any Confidential Information that: (i) the receiving party lawfully had knowledge of, or access to, without an obligation of confidentiality prior to the time of disclosure by disclosing party; (ii) the receiving party developed independently without access to or use of the Confidential Information of the disclosing party and without breach of these Terms; (iii) has become generally known to the public other than by breach of these Terms or wrongful act of the receiving party or its Representatives; or (iv) the receiving party obtained from a third party without an obligation to maintain confidentiality and not being in wrongful possession of such Confidential Information.
5. Return or Destruction of Confidential Information. At the written request of the disclosing party during or within thirty (30) days of termination of these Terms, the receiving party shall, as promptly as practicable, deliver to the disclosing party all Confidential Information of the disclosing party then in the receiving party’s possession or under the receiving party’s control or, if requested in writing by the disclosing party, the receiving party must destroy all of its copies of such Confidential Information, whether tangible or electronic, and certify to the disclosing party in writing that such destruction has been accomplished.
Data Collection and Security
1. Data Security. Thrive deploys commercially reasonable security precautions intended to protect against unauthorized access to Client Data stored by Thrive, including use of firewalls, encryption, and authentication technologies.
2. Client Data. Client agrees that to the extent that the MyeliNet Services allow Client to create content, including but not limited to bills, invoices, forms or other Reports Client is solely responsible for the design, creation, substance, contents and use of all such content and any content or answers provided by Users in response. Thrive does not supervise or oversee such content creation and disclaims all liability therefor.
3. Patient Data. The MyeliNet Services permit Users to upload Patient Data. Thrive shall make such Patient Data available to Client through the MyeliNet Services. All Patient Data shall be stored and processed in accordance with Thrive’s Privacy Policy and HIPAA Privacy Notice.
4. Use of De-Identified, Aggregated Data. To the extent permitted by applicable law, Client grants Thrive the perpetual right to (i) use, process, transfer, and store any Client Data, Patient Data, user statistics and quantitative data in an anonymous (or pseudonymous) and aggregated manner, and (ii) combine Client Data, Patient Data, user statistics and quantitative data with other information, collected online and offline by Thrive, including information from third party sources. Further, Customer grants Thrive the right to collect, use, share and store anonymized (or pseudonymized) aggregated data collected through the MyeliNet Services for benchmarking, analytics, A/B testing, metrics, research, reporting, machine learning and other business purposes, including the foregoing grants shall include the right to collect, use and disclose quantitative data derived from the use of the MyeliNet services for industry analysis, benchmarking, analytics, marketing, and any other lawful purposes.
Intellectual Property Rights

The Parties agree as follows with respect to their respective rights and obligations pertaining to IP Rights:

Ownership of Thrive System and MyeliNet Services. Nothing in these Terms grants any right, title or interest in or to (including any license under) any IP Rights in or relating to, the MyeliNet Services, the Thrive Property or the Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest, including all proprietary rights, in and to the MyeliNet Services, the Thrive Property and the Third Party Materials are and will remain with Thrive and the respective rights holders in the Third Party Materials. Thrive alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, recommendations or other information provided by Client, Users or any third party relating to the MyeliNet Services, and Client hereby assigns any rights or title to any feedback or information Client may provide to Thrive regarding the MyeliNet Services.
Client Property. As between the Parties, all right, title and interest in and to the Client Property shall be the exclusive property of Client; Client owns and retains all present and future rights in and to any and all Client Property; the usage of Client Property detailed herein does not and will not confer or transfer any ownership right(s) to Thrive.
Use by Thrive of the Client Property. Thrive shall have the right, during the Term and subject to Section 5, to use the Client Property solely in accordance with the terms set forth herein, the Privacy Policy, HIPAA Privacy Notice and solely as necessary for Thrive to perform its obligations under these Terms. Upon termination of these Terms, Thrive shall return or destroy any such Client Property still in its possession in accordance with Section 5(e).
Use of the MyeliNet Services by Client. Subject to Client’s full payment of any applicable Fees and other charges set forth in an Order, Thrive grants to Client and its Users a non-exclusive license to Use the MyeliNet Services and Documentation as further specified herein and in an Order.

Client Obligations; Prohibited Activities
1. Client Systems and Cooperation. Client shall at all times during the Term: (i) set up, maintain and operate in good repair and in accordance with the specifications set forth in the Documentation all Client systems on or through which the MyeliNet Services are accessed or used; (ii) provide Thrive’s personnel with such access to Client’s premises and systems as is necessary for Thrive to provide the MyeliNet Services in accordance with the specifications set forth in the Documentation; and (iii) provide all cooperation and assistance as Thrive may reasonably request to enable Thrive to exercise its rights and perform its obligations under and in connection with these Terms.
2. Effect of Client Failure or Delay. Thrive is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under these Terms (each, a “Client Failure”).
3. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 8(d), Client shall immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (ii) notify Thrive of any such actual or threatened activity.
4. Prohibited Activities. Client shall not, and shall not permit any User, other person or entity to, access or use the MyeliNet Services or Thrive Property except as expressly permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, except as these Terms expressly permit, Client shall not, and shall not permit any User, other person or entity to:
  1. make the MyeliNet Services available to, or Use the MyeliNet Services for the benefit of, anyone other than Client or Users, unless expressly stated otherwise in an Order;
  2. copy, modify or create derivative works or improvements of the MyeliNet Services or Thrive Property;

rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any MyeliNet Services or Thrive Property to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the MyeliNet Services or Thrive Property, in whole or in part;
input, upload, transmit or otherwise provide to or through the MyeliNet Services or Thrive System, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, Trojan horse or other harmful code;
damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the MyeliNet Services, Thrive System, Thrive’s Property or Thrive’s provision of services to any third party, in whole or in part;

remove, delete, alter or obscure any trademarks, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any MyeliNet Services or Thrive Property, including any copy thereof;
access or Use the MyeliNet Services or Thrive Property in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP Right or other right of any third party, or that violates any applicable law; or

access or use the MyeliNet Services or Thrive Property for purposes of competitive analysis of the MyeliNet Services or Thrive Property, the development, provision or use of a competing software service or product or any other purpose that is to the Thrive’s detriment or commercial disadvantage.

Client’s or a User’s violation of the foregoing, or any Use of the MyeliNet Services in breach of these Terms, Documentation or any Order, by Client or Users that in Thrive’s judgment imminently threatens the security, integrity or availability of Thrive’s System or MyeliNet Services, may result in Thrive’s immediate suspension of the MyeliNet Services. Thrive will use commercially reasonable efforts under the circumstances to provide Client with an opportunity to remedy such violation or threat prior to any such suspension.

Warranties and Indemnification
1. Each Party represents, warrants and covenants (collectively, “Represents”) that these Terms and all Orders have been executed by a duly authorized representative of the Party and that there are no actions, suits or proceedings or regulatory investigations pending against or affecting that Party before any court or administrative body or arbitration tribunal that might affect the ability of that Party to meet and carry out its obligations under these Terms.
2. Performance Thrive Represents that the MyeliNet Services shall materially conform to and perform in material accordance with the Documentation and specifications detailed herein; provided that availability of the MyeliNet Services excludes downtime due to scheduled maintenance, partial or total internet outages, or other events beyond Thrive’s reasonable control.
3. Client Warranty. Client Represents that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Thrive and processed in accordance with these Terms, they do not and will not infringe, misappropriate or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable law.
4. Warranty Disclaimer. As an Internet-delivered software application, the MyeliNet Services may experience periods of downtime, including but not limited to scheduled maintenance, and third-party service outages. ACCORDINGLY, EXCEPT AS EXPRESSLY WARRANTED IN THESE TERMS OR IN A WRITTEN ADDENDUM BETWEEN THE PARTIES, THE MYELINET SERVICES ARE PROVIDED “AS IS” AND THRIVE MAKES NO WARRANTIES OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE MYELINET SERVICES, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THRIVE DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT (A) THE MYELINET SERVICES WILL RUN PROPERLY ON ALL HARDWARE OR ALL ENVIRONMENTS, (B) THE PLATFORM WILL MEET CUSTOMER OR USER NEEDS OR REQUIREMENTS, (C) THE MYELINET SERVICES WILL PERFORM UNINTERRUPTED OR BUG OR ERROR-FREE, OR (D) THAT ANY OR ALL DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE, UP-TO-DATE, OR COMPLETE, OR (E) THAT ANY DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
5. 1. Thrive shall, at Thrive’s sole cost and expense, indemnify, defend and hold harmless Client and its Users, directors, officers, employees, and agents (“Client Related Parties”) from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, penalties, fines, costs, damages and liabilities (collectively, “Losses”), which arise out of or relate to any third party claim or allegation that the Thrive Property (excluding the Third Party Materials), or the Use thereof, infringes or violates any IP Rights. In addition to the foregoing, Thrive shall promptly reimburse Client and the Related Parties for any and all legal, accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending any such Losses. The foregoing obligation does not apply to any action or Losses arising out of or relating to any:
6. access to or use of the MyeliNet Services or Thrive Property in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Thrive;
7. modification of the MyeliNet Services or Thrive Property other than: (i) by or on behalf of Thrive; or (ii) with Thrive’s written approval in accordance with Thrive’s written specification;
8. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Thrive; or
9. Any Client Failure.
  1. Client shall, at Client’s sole cost and expense, indemnify, defend and hold harmless Thrive and its members, managers, limited partners, general partners, officers, affiliates, employees and agents (“Thrive Related Parties”) from and against any and all Losses which arise out of or relate to any claim or allegation: (i) that the Client Property, or the use thereof, infringes or violates any third-party IP Rights or violates any laws, including, but limited to, the Health Insurance Portability and Accountability Act; or (ii) to the extent proximately caused by the negligence or willful misconduct of Client; or (iii) that Client or a User breached these Terms; or (iv) that Client or User has violated applicable law, including, but not limited to, the Health Insurance Portability and Accountability Act. In addition to the foregoing, Client shall promptly reimburse Thrive and the Thrive Related Parties for any and all legal, accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending any such Losses.
10. Limits of Liability; Liability Cap
  1. INDIRECT DAMAGES. NEITHER PARTY (NOR SUCH PARTY’S AFFILIATES NOR THEIR SHAREHOLDERS, MEMBERS, MANAGERS, LIMITED OR GENERAL PARTNERS, AUTHORIZED USERS OR PERSONNEL) WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING IN CONNECTION WITH THESE TERMS OR THE PERFORMANCE, OMISSION OF PERFORMANCE, OR TERMINATION HEREOF WITHOUT REGARD TO THE NATURE OF THE CLAIM (E.G., BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. IN NO EVENT WILL THE AGGREGATE LIABILITY OF THRIVE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY CLIENT TO THRIVE UNDER THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING ASSERTION OF THE RELEVANT CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Miscellaneous Terms
  1. For questions or other notices regarding these Terms, please email [email protected].
  2. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms or any Order, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Thrive’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Client (regardless of whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under these Terms for which Thrive’s prior written consent is required. No delegation or other transfer will relieve Client of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section 11(b) is void. These Terms are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
  3. No waiver regarding any breach of these Terms shall constitute a waiver of any other breach. Any delay by a Party in exercising any right provided for in these Terms, shall not be deemed a waiver of the subject right or any further right under these Terms.
  4. Non-Disparagement. The Parties shall not, directly or indirectly, act in any way likely to damage or disparage the goodwill or reputation of the other Party or its affiliates and/or any of their products or services. This provision shall survive the expiration or termination of these Terms.
  5. Relationship of the Parties. The Parties shall at all times be independent contractors in the performance of these Terms. Nothing contained in these Terms shall be construed to give either Party the power to direct and control the day-to-day activities of the other Party or to constitute a partnership, joint venture or employment relationship between the Parties. Neither Party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party. Each Party’s personnel shall be regarded at all times as employees, agents or subcontractors of that Party, and no employment, agency, or contractual relationship shall arise between a Party’s personnel and the other Party under any circumstances regardless of the degree of supervision that may be exercised over such personnel by the other Party.
  6. Force Majeure. In no event will Thrive be liable or responsible to Client, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any obligation under these Terms when and to the extent such failure or delay is caused by any circumstances beyond Thrive’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
  7. Governing Law and Jurisdiction. The interpretation, validity and enforcement of these Terms, and all legal actions brought under or in connection with the subject matter of these Terms, shall be governed by the laws of the Commonwealth of Pennsylvania (notwithstanding its conflict of law principles). Any legal action brought under or in connection with the subject matter of these Terms shall be brought only in the District Courts for the Western District of Pennsylvania, or if such court would not have jurisdiction over the matter, then only in a Pennsylvania state court sitting in Allegheny County, Pennsylvania. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of these Terms in any other court or forum.
  8. Any provision of these Terms that contemplates performance or observance subsequent to termination or expiration of these Terms shall survive termination or expiration of these Terms and continue in full force and effect.
  9. In the event that any provision of these Terms shall, for any reason, be held by a court of competent jurisdiction to be invalid, void or unenforceable in any respect, such holding shall not affect any other provisions of these Terms, which shall remain in full force and effect unless such continuance will deprive one of the Parties of a material benefit hereunder or frustrate the main purpose(s) of these Terms.
  10. Entire Agreement. These Terms together with any Order issued hereunder, and the Privacy Policy and HIPAA Privacy Notice, which are incorporated herein by this reference, constitute the complete and entire agreement between the Parties regarding the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, proposals, and representations, written or oral, concerning such subject matter; provided, however, that if the parties have executed a modified version of these Terms, such modified Terms shall form an integral part of the complete and entire agreement between the parties and shall take precedence in the event of any conflict or inconsistency with the provisions of these Terms.

ANY NEW TERMS OR CHANGES INTRODUCED IN ANY PURCHASE ORDER, ORDER ACKNOWLEDGMENT OR OTHER DOCUMENT OTHER THAN A MUTUALLY EXECUTED WRITTEN ORDER ARE VOID AND OF NO FORCE OR EFFECT. A PARTY’S ACKNOWLEDGEMENT OF RECEIPT OF SUCH DOCUMENT, PERFORMANCE OF MYELINET SERVICES, PAYMENT OR ACCEPTANCE OF PAYMENT SHALL NOT CONSITUTE AGREEMENT TO ANY TERMS OTHER THAN THOSE SET FORTH IN THESE TERMS.