service provider terms & conditions
Last Updated: October 21, 2021
What's Covered in Our Terms
Our Terms and Conditions describe our relationship together and what we should expect of each other while using the thrive lot platform, working with thrive lot project success managers, and Customers.
We are thrive lot, inc.! A for-profit benefit corporation incorporated in the state of Tennessee. This means we acknowledge and pursue social good, localized value streams, and ecological regeneration in every aspect of our organization. We provide a broad spectrum of tools and services useful to the administration and execution of your business and field work. We’re a fully remote company hard at work building the thrive lot platform from several states and a few countries. In many ways, we operate from a set of core principles inherent to Systems Thinking.
Together, we are thrive lot. Legally, we are your platform agent and you are a Service Provider using the platform as a payments, sales, marketing, business, scheduling, proposal, invoicing, planning, design, and contract administration system for you and your business.
As a Service Provider, you are responsible for using the thrive lot platform to do business and perform services and activities typical to your skillset and portfolio. You are responsible for all credentials, policies, and methods in completing projects and we only require that you not engage in competitive activities within the thrive lot network.
We're your concierge service that facilitates expectation setting with Customers throughout the life of projects. The app is your one-stop shop for building project documentation, proposals, payments, visit scheduling, work scoping and planning, estimating, and timeline setting
We aim to maximize your time and give you the tools and resources to do your best work. We believe that the work you do is the most important work happening on the planet, and we want to see abundant life scale into the norm, changing consumption habits for the ecological health of the future — starting in backyards everywhere.
By creating a thrive lot account, we’re granting you exclusive license to use the thrive lot platform, its features, and its functions. We’re plugging in with you as a payment processor and agent. That symbiotic relationship helps us create the most amount of value with the least amount of friction.
We will never use extractionary practices, so we apply a standard markup that the Homeowner is happy to pay in service of our mission and values. The yield to thrive lot is applied at each transaction which helps us sustain and grow the platform to create more value and a consistently better experience.
You should expect us to act as your liaison and agent in handling matters like:
- marketing your skills, portfolio, and abilities to Customers for current and future projects.
- matching you with budget-qualified, highly motivated and mission-aligned landowners.
- preparing the Homeowner's story, their values, priorities, short term, and long term goals for the land — we want to give you everything you need to step right into weaving together the Customer's dreams with the needs of the land.
- communicating broadly about how a project proceeds
- collecting a deposit in advance to book a site visit with you to spend time on site getting to know the land and Homeowner.
- disbursing the deposit and all other payments upon completion of all activities scheduled on the platform
- facilitating project development through each milestone of development; we're the rails, you’re the conductor.
- distributing Project terms and acknowledgements at each milestone (delivery of scoped work) to maximize understanding and transparently communicate expectations across the projects
- monitoring and updating the Homeowner's expectations and budget according to the needs you set forth for the project as Activities.
You should also expect us to be improving the experience, usability, speed, and power of the platform continuously over time. The more feedback and ideas you’re willing to share, the better we can make it for all. We’re committed to building the platform with you, not just for you.
We expect you to be evangelists and role models for creating the regenerative, abundant future we envision together. To us, that means right action and high integrity outcomes. In business speak, some might call it respect, professionalism, timeliness, or even best practices. Otherwise, our expectations for working together are straightforward:
- We expect that you join thrive lot to contribute to its development as a member of the regenerative, circular economy we're creating by way of a distributed technology platform.
- We expect that you will act with integrity and create thriving ecosystems, each a puzzle piece in a larger game of restoration.
- We expect that you listen intently to the desires, values, and vision of the Homeowner and seek to respond thoughtfully in weaving together their story with the ecology.
- We expect that you trust us to deliver qualified, values-aligned projects that match your capacity and ability.
- We expect that you offload much of the tedious business administration details to the thrive lot platform. The back of our distributed technology platform is strong and will sustain it. We hope for you to do what you love and consistently deliver high-impact experiences.
- We expect that you use the thrive lot platform as the single source of truth for project communication, documentation, proposal creation, work scoping, invoicing, scheduling, work planning, and expectation setting.
- We expect that, for each milestone in a project's development, you define the Scope of Work and Deliverables the Homeowner should expect to receive. We call these Activities; you can learn more about work scoping, deliverables, and Activities here.
- We expect that you consistently deliver thoughtful and high-quality designs that reflect a reciprocity of value exchange.
- We expect that you trust us to collect and deposit funds into your business account in a timely and well-communicated manner.
- We expect that you hold your colleagues, subcontractors, partners, et. al. to the same standard of care that you hold for yourself.
- We expect that you communicate honestly and earnestly about your experience with us, projects, Homeowners, your business needs and your capacity. We desire to maintain mutual knowledge about how each other is doing and how we can continually learn and improve.
- We expect that you estimate projects fairly and with a reasonable degree of accuracy and respect for the Homeowner. If project needs or site conditions result in a scope change or budget increase, we're on standby to communicate and adjust the budget with the Homeowner on your behalf.
- We expect that you grant us permission to use content generated on the thrive lot platform to market and advertise your services in the region.
- We expect that you are with us on a mission to create an abundant future for all.
Terms and Conditions for Service Provider
These Terms and Conditions govern the relationship between Thrive Lot, Inc., a Tennessee for profit benefit corporation (“Thrive Lot”) and the individual or entity accepting the terms, identified the Service Provider on app.thrivelot.com (“Service Provider”) as of the date these Terms and Conditions are accepted (“Effective Date”). These Terms and Conditions in conjunction with all documents governed by these Terms and Conditions constitute the “Agreement.”
1. General Provisions
1.1. Background Statement
Thrive Lot provides a web-based and mobile application-based portal (the “Thrive Lot Platform”) through which customers (“Customers”) learn about, connect with, engage, and review service providers, such as Service Provider, which are in the business of providing gardening, and landscaping labor and/or supplies (“Services”). Thrive Lot provides Customers and Service Provider a platform to make this connection. Service Provider understands and intends that Service Provider will provide the Services to Customers strictly as an independently-owned and operated business enterprise, and not as an employee, worker, agent, joint venturer, partner, or franchisee of Thrive Lot or any Customer for any purpose.
Thrive Lot and Service Provider acknowledge and agree that the Services are outside the usual course of Thrive Lot’s business and that the Services will be performed outside the places of Thrive Lot’s business, and outside the control of any employee, worker, agent, joint venturer, partner, or franchisee of Thrive Lot.
1.2. Right to Use
Subject to the terms and conditions of this Agreement, Thrive Lot hereby grants Service Provider a nonexclusive, non-transferable, revocable, limited, non-sublicensable, personal right to use the Thrive Lot Platform for the purpose of advertising Service Provider’s Services and reviewing, accepting, documenting, and receiving payment related to Projects from Customers.
Thrive Lot shall enable Service Provider to create a landing page for his or her individual business (“Profile Page”) on the Thrive Lot Platform to advertise its qualifications, credentials, experience, and availability to Customers. The Profile Page may also include pictures, contact information, and other information Service Provider deems necessary to advertise its services. Thrive Lot may remove any content from a Profile Page that Thrive Lot determines, in its sole discretion, undermines the mission or goals of Thrive Lot.
From time to time, Customers will inform Thrive Lot of projects which set forth the nature of the Services required (the “Projects”). Each discreet aspect of a Project as defined by Thrive Lot is referred to as an “Activity.” Projects will include a date, general neighborhood or geographic area where the Project will take place, and a description of the goals for the Project. Thrive Lot, in its sole discretion, will make Activities suitable to Service Provider’s skills available to a Service Provider. Thrive Lot does not guarantee any minimum number of Activities will be available to Service Provider at any point during the term of this Agreement. Service Provider is not obligated to accept Activities assigned by Thrive Lot.
1.4. Background Investigations
Service Provider hereby consents to the obtaining by Thrive Lot of background, credit, and other investigations of Service Provider and/or any employee, associate, or subcontractor of Service Provider.
2. The Services
2.1. Accepting Activities
Service Provider may accept Activities available to Service Provider through the Thrive Lot Platform for which Service Provider is fully-licensed (to the extent required by applicable law in the jurisdiction where the Services are being performed) and qualified to provide as specified and as listed by Service Provider on its, his or her Profile Page. Service Provider may accept or reject a Activity made available by Thrive Lot and must do so within the time specified on the Thrive Lot Platform. In those jurisdictions where a license, permit, or certification is required to perform the Services, Service Provider shall, upon request, provide proof to Thrive Lot of all necessary licenses, permits and/or certifications before Service Provider provides any such Services under this Agreement. Activities consist of the “Site Assessment Activities” (described in Section 2.2, “Design Activities” (described in Section 2.3), “Installation Activities” (described in Section 2.4), and “Stewardship Activities” (described in Section 2.4).
2.2. Site Assessment; Proposal
Once a Service Provider has accepted a Site Assessment Activity, Service Provider shall provide an onsite, one hour, assessment of Customer’s Project (“Site Assessment”). After completion of the Site Assessment, Service Provider shall prepare a proposal for the Customer and submit the proposal in the Thrive Lot Platform. Under no circumstances may Service Provider submit a proposal directly to the Customer. The proposal must meet the requirements specified on the Thrive Lot Platform, as determined solely by Thrive Lot, which will be updated from time to time by Thrive Lot. Thrive Lot will present the proposal to the Customer and the Customer will decide whether to accept the proposal. If Customer accepts the proposal and pays the deposit required by Thrive Lot, then Service Provider may begin performance of additional Activities as specified in the proposal if Service Provider accepts additional Activities. Upon acceptance of the proposal, Customer will enter into an agreement with the various Service Providers performing the Activities, specified by Thrive Lot, to have the Project performed.
After a proposal is accepted by the Customer, if Service Provider has accepted the Design Activity, Service Provider will prepare the design using Thrive Lot’s design services or design services that meet the design requirements specified on the Thrive Lot Platform and as Thrive Lot communicated on the discovery call and approved by Thrive Lot (“Designs,” each, a “Design”). Service Provider shall cause all Designs to conform to any applicable requirements of federal, state and local laws, rules and regulations, including, but not limited to, the Uniform Building Code, in effect as of the time the Designs are prepared or revised. If such Designs show variations from the proposal, Service Provider shall describe such variations in writing, separate from the Design. If the variation is minor or does not involve a change in price or in time of performance, a modification need not be issued. As a result of the Design Service Provider shall update the Service Provider Cost for all Milestones, as defined below.
The proposal shall specify phases (each a “Installation Activity”) and have Project milestones and estimated completion dates for each Installation Activity (“Milestones”, each a “Milestone”). Thrive Lot shall not be responsible for defining and enforcing Service Provider’s fulfillment of such terms with a Customer. Service Provider is solely responsible for determining the manner and method of performing all Activities accepted and meeting all Milestones associated with such Activities under this Agreement.
Service Provider agrees that all stewardship work done for the Customer (“Stewardship”) will be processed through the Thrive Lot Platform. Service Provider shall not schedule or perform any Stewardship for Customer that is not scheduled through the Thrive Lot Platform.
Service Provider agrees to submit all proposals, Designs, Site Assessments, contracts with Customers or Subcontractors, or other documents related to the Project (collectively, “Documentation”) to the Thrive Lot Platform.
Service Provider shall provide to Thrive Lot through the Thrive Lot Platform the Service Provider’s cost for all materials and labor for the Activities Service Provider has accepted (“Service Provider Cost”). Thrive Lot will mark up the Service Provider Cost to cover Thrive Lot’s cost and profit. Thrive Lot shall collect all payments from the Customer through the Thrive Lot Platform on behalf of Service Provider, regardless of whether such payments are for the Site Assessment, Design, Milestones, or Stewardship. All payments are made to Service Provider within 30 days of when the payment is due provided that Thrive Lot has collected the payment from the Customer. This Agreement does not provide Service Provider a guarantee that Customer shall pay and Service Provider shall hold Customer exclusively liable for any amounts that Customer does not pay. Service Provider hereby appoints Thrive Lot as its agent to accept payment on Service Provider’s behalf. Service Provider shall receive payment as follows:
3.1. Site Assessment
Upon completion of the Site Assessment, if Service Provider performed the Site Assessment Activity, Service Provider shall receive 50% of the initial deposit charged to Customer, which is normally $250.
If Service Provider performed the Design Activity, upon acceptance of the proposal by the Customer and Customer’s payment of the Design cost, Service Provider shall receive 50% of the Service Provider Cost for the Design. Service Provider shall receive the remaining 50% of the Service Provider Cost for the Design upon completion of the design, to Thrive Lot’s satisfaction.
At the beginning of each Project Phase for a Project Phase Activity Service Provider has accepted, Service Provider shall receive 100% of the cost of materials for such Project Phase and 50% of the cost of labor for such Project Phase, as specified in the Service Provider Cost. Upon completion of a Milestone to the Customer’s satisfaction, Service Provider shall receive the remaining 50% of the cost of labor, as specified in the Service Provider Cost.
If Service Provider has accepted the Service Provider Activity, Service Provider will specify the cost for Stewardship on either an annual basis with monthly payment or on as-needed basis. Payments for Stewardship are earned by Service Provider after the Stewardship has been performed.
Thrive Lot owns all right, title and interest to the Thrive Lot Platform. Service Provider does not acquire any rights in the Thrive Lot Platform other than the rights provided in Section 1.2. Service Provider retains all right, title and interest in all Designs and Documentation that Service Provider creates and provides to Thrive Lot. Service Provider grants Thrive Lot a non-exclusive, worldwide, perpetual, and irrevocable license to use, store and distribute all Designs and Documentation that Service Provider produces for a customer.
5. Customer Ratings
Service Provider acknowledges that the Thrive Lot Platform is available only to those Service Providers who maintain high standards of professionalism and quality of service. Thrive Lot reserves the right to remove Service Provider from the Thrive Lot Platform if Service Provider does not maintain high standards of professionalism and quality of service, all of which shall be determined and determinable by Thrive Lot in Thrive Lot’s sole discretion.
6. No Control
Service Provider is, at all times while this Agreement is in effect, free from Thrive Lot’s supervision, control and direction in the performance of the Services. Thrive Lot shall not control or have any right to control the manner or means by which Service Provider performs the Services, including but not limited to the time and place Service Provider performs the Services, the Activities Service Provider accepts, the tools and materials used by Service Provider to complete the Activities, the helpers, assistants, subcontractors or other personnel (if any) used by Service Provider in completing Activities, or the manner in which Service Provider completes the Activities. Thrive Lot will not and has no right to, under any circumstances, require Service Provider to participate in training, nor does Thrive Lot offer or provide training to Service Provider, except for training on the use of the Thrive Lot Platform.
Service Provider is not obligated to personally perform the Services. Service Provider may desire that additional personnel needed for a Activity, which are not employees of Service Provider, be hired directly by the Customer. In this case all additional personnel must use the Thrive Lot Platform, enter into an agreement with Thrive Lot, and allow Thrive Lot to receive all payments from the Customer. Under no circumstances may Customer pay Service Provider or any additional personnel directly for performance of Services, and Service Provider agrees to facilitate such a relationship with any additional personnel.
Alternatively, Service Provider may furnish at his or her own discretion, selection, and expense any and all assistants, helpers, subcontractors or other personnel (collectively, “Sub Contractors”) Service Provider deems necessary and appropriate to complete the Services. Service Provider shall be solely responsible for the direction and control of any Sub Contractors and for all acts and omissions of Sub Contractors. Service Provider assumes all liability for any Services performed by Sub Contractors.
Before any Services are performed by any Sub Contractors engaged by Service Provider, Service Provider shall require any such individuals to submit the name, address, phone number, and relevant licensing and qualifications of the Sub Contractors to Thrive Lot. All Sub Contractors must be approved by Thrive Lot before performing any work on a Project.
Service Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Sub Contractors, and for all required state and federal income tax withholdings, unemployment insurance, and social security taxes as to Service Provider and all Sub Contractors engaged by Service Provider in the performance of the Services. Service Provider agrees that it is fully and solely responsible for filing, and shall file, an appropriate schedule of expenses and all other appropriate tax documents with the Internal Revenue Service in compliance with required filing periods. Service Provider shall be responsible for, and shall indemnify and hold Thrive Lot harmless from and against, any claims, suits, or actions related to this provision, including, but not limited to, any such claims brought by Service Provider or Sub Contractors, or by any third party with respect to any claims for taxes or contributions, including, but not limited to, penalties and interest.
7. Equipment & Operations
7.1. Data Collection
7.2. Costs of Operation
Service Provider is solely responsible for any costs or expenses incurred by Service Provider in connection with the operation of Service Provider’s business and the performance of the Services. Service Provider shall furnish and maintain, at Service Provider’s own expense, the tools, equipment, supplies, and other materials used to perform the Services, which may be owned or rented by Service Provider. Service Provider, at Service Provider’s sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials.
8. Relationship of the Parties
Service Provider is an independent contractor or business entity. Service Provider represents that it is customarily engaged in or is familiar with and experienced in gardening and related landscaping services. Service Provider further represents that it maintains a principal place of business in connection with Service Provider’s trade, occupation, profession and/or business that is eligible for a business deduction for federal income tax purposes. This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between Service Provider and Thrive Lot or any Customer for any purpose. Service Provider has no authority (and shall not hold himself or herself out as having authority) to bind Thrive Lot and Service Provider shall not make or purport to make any agreements or representations on Thrive Lot’s behalf without Thrive Lot’s prior written consent. Service Provider understands that Service Provider will not be eligible to participate in any benefit plans offered to Thrive Lot’s employees, including, but not limited to, vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Thrive Lot to its employees. Thrive Lot will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including, but not limited to, unemployment or disability, or obtaining workers’ compensation insurance on Service Provider’s behalf. Service Provider shall be responsible for and shall indemnify and hold Thrive Lot harmless from and against any claims, suits, or actions related to this provision, including, but not limited to, any such claims brought by Service Provider or by any third party with respect to any claims for taxes or contributions, including, but not limited to, penalties and interest.
9. Representation and Warranties
Service Provider represents and warrants to Thrive Lot that: (a) Service Provider has, and any Sub Contractors engaged by Service Provider have, the legal right to provide the Services that are contemplated by this Agreement in the United States; (b) Service Provider is, and any Sub Contractors engaged by Service Provider are, fully-licensed (to the extent required by applicable law) and authorized to provide the Services contemplated by this Agreement within the jurisdiction in which Service Provider and any Sub Contractors engaged by Service Provider intend to offer Services, and have the required skill, experience, and qualifications to perform the Services; (c) Service Provider shall perform the Services in accordance with the Customer’s preferences and shall ensure that all Sub Contractors used by Service Provider in relation to the delivery of Services shall do likewise, including, but not limited to, the performance of all Projects referred to Service Provider that are accepted by Service Provider through the Thrive Lot Platform; (d) Service Provider and any Sub Contractors engaged by Service Provider shall perform the Services in accordance with all applicable laws, rules and regulations; (e) Service Provider has the right to and does advertise and hold itself out to the public as available to provide the same or similar services as those provided under this Agreement; (f) Service Provider has the right to and does contract with other businesses to provide the same or similar services as those provided under this Agreement and maintains a clientele separate from the Customers referred to Service Provider by Thrive Lot; and (g) Service Provider maintains a business location that is separate from the business or work location of Thrive Lot or the Customer.
Service Provider shall defend, indemnify and hold harmless Thrive Lot and its affiliates, parents, subsidiaries, and partners and their respective officers, directors, employees, agents, successors, and assigns and any other entity that requests or is in any way involved in making available, arranging and/or facilitating services through the Thrive Lot Platform from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable legal fees) arising out of or resulting from: (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Service Provider’s acts or omissions, which shall include any acts or omissions of any assistants, helpers, subcontractors or other personnel engaged by Service Provider; (b) Service Provider’s breach of any representation, warranty, or obligation under this Agreement; and (c) any claims by a Customer that Service Provider has agreed to perform work for.
The Services that Service Provider provides pursuant to this Agreement are fully and entirely Service Provider’s responsibility. Thrive Lot is not responsible or liable for the actions or inactions of a Customer or other third party in relation to the Services provided by Service Provider. Service Provider understands, therefore, that by using the Thrive Lot Platform, Service Provider will be introduced to Customers to whom Thrive Lot has not conducted any background or reference checking, that may be potentially dangerous, and that Service Provider uses the Thrive Lot Platform at its own risk.
11. Term; Termination
This Agreement shall be effective as of the Effective Date and remains in effect until terminated as set forth in Section 11.2 (the “Term”).
The parties acknowledge that the Term does not reflect an uninterrupted service arrangement, as this Agreement guarantees Service Provider the right to choose when to make itself available to perform Services and Service Providers’ selection by Customers is treated as a separate service arrangement.
11.2.1. Termination for Breach
Thrive Lot and Service Provider may terminate this Agreement, effective immediately upon written notice to the other party, in the event that the other party materially breaches this Agreement. A material breach includes, but is not limited to, the acts or omissions expressly defined as constituting a material breach herein: misconduct, Service Provider’s failure to complete a Project to the Customer’s satisfaction, or Service Provider’s negative Customer reviews. In the event there is a dispute whether Thrive Lot or Service Provider materially breached the Agreement, and it cannot be resolved by informal negotiations, the parties agree to submit any such dispute to final and binding arbitration, as described in Section 17, below.
11.2.2. Termination for Convenience
Either party may terminate the Agreement for any reason upon seven (7) days’ written notice. The termination of this Agreement does not terminate any agreement between Service Provider and Customer.
11.3. Customer Agreement
If a Customer requests that the agreement with Service Provider and Customer be terminated then Service Provider agrees to consent to such termination. Service Provider agrees not to place any provisions in its agreement with the Customer contrary to this Section.
11.4. Service Provider's Obligations Upon Termination
Upon termination of this Agreement for any reason, Service Provider shall: (a) complete any outstanding Projects Service Provider has accepted, and (b), certify in writing to Thrive Lot that Service Provider has complied with the requirements of this Section.
11.5. Surviving Provisions
If this Agreement is terminated or expires, all of the terms of this Agreement survive and continue to govern Service Provider as long Service Provider is performing Services for one or more Customers. If Service Provider is no longer performing Services and this Agreement is terminated or expires then Sections 4, 9, 10, 12, 13, 15, 17, 18, and 21 survive the expiration or termination of this Agreement.
12. Other Business Activities
12.1. Other Activities
Service Provider may be engaged or employed in any other business, trade, profession, or other activity, including providing Services to customers booked through means other than the Thrive Lot Platform, including other web-based portals, smartphone applications, and/or platforms. Thrive Lot has no obligation to utilize Service Provider under this Agreement and may use other providers to perform the same or similar services as those that may be performed by Service Provider under this Agreement.
12.2. Competitive Activities
To the extent the law allows, Service Provider shall not, during Service Provider’s performance of the Services, and for a period of one year after the date on which Service Provider stops performing the Services, directly or indirectly, engage, without the prior express written consent of Thrive Lot, in any business or activity, whether as an employee, consultant, partner, member, principal, agent, representative, stockholder or in any other individual, corporate or representative capacity, or provide any advice to any business, activity, person or entity, if such business, activity, service, person or entity, directly or indirectly, is engaged in the provision of services or products which compete in any manner with, or are similar to, the Thrive Lot Platform. This Section shall be effective throughout the area where Service Provider provides Services. Provided however, this Section will be void in the event Thrive Lot or Thrive Lot’s successor in interest ceases all its operations. Notwithstanding the foregoing, Service Provider is not prohibited in providing Services to individuals or entities that are not customers of Thrive Lot.
Service Provider shall not directly or indirectly, during the term of this Agreement, and for one year after Service Provider stops performing Services under this Agreement (a) take any action to solicit or divert any business (or potential business) or clients or customers (or potential clients or potential customers) away from Thrive Lot, (b) induce customers, potential customers, clients, potential clients, suppliers, agents or other persons under contract or otherwise associated or doing business with Thrive Lot, reduce or alter any such association or business with or from Thrive Lot, and/or (c) induce any person in the employment of Thrive Lot or any consultant to Thrive Lot to (i) terminate such employment, or consulting arrangement, (ii) accept employment, or enter into any consulting arrangement, with anyone other than Thrive Lot, and/or (iii) interfere with the customers, suppliers, or the clients of Thrive Lot in any manner or the business of Thrive Lot in any manner. For purposes of this Section, a “potential client” or a “potential customer” shall mean a person or entity that Thrive Lot (A) as of the date this Agreement terminates, is, or will be in the reasonably foreseeable future, soliciting or considering soliciting (or has targeted for solicitation, or will be so targeting in the reasonably foreseeable future), and/or (B) has, at any time or from time to time, within the 12 month period prior to the date this Agreement terminates, been soliciting for or in respect of any current, actively pending or contemplated product lines, businesses, or services offered by Thrive Lot, including without limitation, any licensing arrangements, manufacturing arrangements, and/or distribution arrangements (the “Products”), and “potential business” shall mean any current or reasonably foreseeable commercial activity or any current or reasonably foreseeable commercial opportunities associated in any way with the Products.
13. Confidentiality and Non-Disclosure
13.1. Confidential Information
“Confidential Information” means all information of every nature and kind, whether written, oral, on magnetic or other storage media, or in any other form of every nature and kind, including without limitation: this Agreement, the Thrive Lot Platform, prospective and existing customer information of Thrive Lot, list of Service Providers and other contractors of Thrive Lot, plans, formulas, formulations, specifications, designs, prototypes, know-how, processes, technology, products, samples, secrets, inventions, patents, copyrights, tradenames, trademarks, business plans, marketing methods, marketing tools, sales methods, sales tools, and present and future products and policies of Thrive Lot, all as disclosed or made available in any manner by Thrive Lot, or otherwise learned by Service Provider in connection with Service Provider providing Services or using the Thrive Lot Platform. However, Confidential Information will not include information which is public knowledge, becomes public knowledge through no fault of the parties, or is received independently from a third party who had such information independently from the parties hereto, and who had the right to disclose such information.
Service Provider acknowledges and agrees that Confidential Information is proprietary to and a valuable trade secret of Thrive Lot and that any disclosure or unauthorized use thereof will cause irreparable harm and loss to Thrive Lot.
13.3. Obligations of Service Provider
In consideration of the disclosure of Confidential Information, Service Provider agrees to treat Confidential Information in confidence and to undertake the following additional obligations with respect thereto:
to use Confidential Information for the sole purpose of performing Services for Customers obtained from the Thrive Lot Platform;
not to copy, in whole or in part, Confidential Information;
to limit dissemination of Confidential Information to only those employees who have a need to know to perform the limited Activities set forth in subsection (13.3.1) above, and to prevent further dissemination and/or the use of Confidential Information by any employee or agent for any purpose other than that set forth in subsection (13.3.1) above; and
to return Confidential Information, including, but not limited to, all copies and records thereof, to Thrive Lot upon receipt of request therefore, or the termination or expiration of this Agreement, whichever occurs first.
Notwithstanding any provision of this Agreement, pursuant to 18 U.S.C. Section 1833(b), Service Provider is hereby notified and acknowledges that:
Service Provider shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that
(a) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or
(b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
If Service Provider files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of Service Provider and use the trade secret information in the court proceeding, if Service Provider (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
14. Username and Password
During the registration process for the Thrive Lot Platform Service Provider created a user name and password that allows Service Provider to have access to the Thrive Lot Platform. Service Provider shall not provide its user name or password to access the Thrive Lot Platform to any other person or entity, or allow any other person or entity to access the Thrive Lot Platform under its user name and password. Service Provider agrees that it is solely responsible for any actions that occur under Service Provider’s user name and password. In the event that the user name and password Service Provider created becomes known by a third party Service Provider agrees to take all available precautions to prevent the user name and password from being used by an unauthorized individual, including, but not limited to, disabling the user name, and Service Provider agrees to notify Thrive Lot immediately.
15. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Thrive Lot be liable to Service Provider under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind (“Consequential Losses”), including, without limitation, Consequential Losses arising from loss of profits, revenue, data or use, or from interrupted communications or damaged data, or from any defect or error or in connection with Service Provider’s acquisition of substitute goods or services or from malfunction of the Thrive Lot Platform, or any such Consequential Losses arising from breach of contract or warranty or from negligence or strict liability, even if Thrive Lot or any other person has been advised or should know of the possibility of such Consequential Losses, and notwithstanding the failure of any remedy to achieve its intended purpose. Thrive Lot’s entire liability under any provision of this Agreement is limited to $500.
Service Provider may not assign this Agreement or any rights under this Agreement without written authorization by Thrive Lot. Thrive Lot may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns. Any attempted assignment in violation of this Section is null and void.
17. Dispute Resolution; Governing Law
17.1. Informal Negotations
To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement or otherwise arising from the relationship between Service Provider and Thrive Lot, Service Provider and Thrive Lot agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice of the dispute, controversy, or claim. Service Provider’s address for such notices is the address provided by Service Provider to Thrive Lot. Thrive Lot’s address for such notices is 9255 Kingston Pike PMB 24136, Knoxville, TN 37922.
17.2. Arbitration and Mediation Provision
If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation on a confidential basis pursuant to the Commercial Mediation Procedures of the American Arbitration Association, before resorting to arbitration. If necessary, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, that cannot be settled by good faith mediation, shall be settled by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The exclusive venue for any mediation or arbitration is Knoxville, Tennessee.
17.3. Governing Law
This Agreement shall be governed and interpreted pursuant to the laws of Tennessee, notwithstanding any principles of conflicts of law. Without limiting section 17.2, judicial proceedings must be brought in state court or federal district court in the Eastern District of Tennessee, Knoxville, Tennessee, unless otherwise agreed to in writing between parties. Both Service Provider and Thrive Lot consent to venue and personal jurisdiction in Tennessee.
18. Customer Privacy
Service Provider understands that in performing the Services, it will receive certain private and/or confidential information regarding the Customers and will have access to their homes and personal belongings. Except upon order of government authority (e.g., court, administrative agency) having jurisdiction, or upon written consent by the Customer, Service Provider agrees that it shall not publish, disseminate or disclose, for his or her own benefit or the benefit of any third party, any confidential information regarding the Customers, including, but not limited to, addresses, telephone numbers or financial information. Service Provider further agrees not to engage in any activity which violates the privacy of any Customer, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of a Customer or his or her homes or personal belongings, or publishing, disseminating or disclosing any such photographs or recordings. Service Provider acknowledges that its failure to comply with the foregoing shall constitute a material breach of this Agreement.
Service Provider hereby expressly acknowledges and agrees that, by using or receiving access to the Thrive Lot Platform, Service Provider and Thrive Lot are bound by the then-current version of this Agreement, including, but not limited to, any supplements to this Agreement or documents incorporated herein, including the Schedules below. If Service Provider does not wish to be bound by any supplements or changes to this Agreement, then Service Provider shall notify Thrive Lot that it does not wish to be bound by the supplements or changes within 30 days of receiving notification of the supplements or changes.
Service Provider agrees to purchase and maintain at all times, at its sole cost and expense, and in compliance with any requirement of applicable law, general liability insurance to cover personal injury and property damage claims arising from the provision of the Services. The general liability insurance coverage must cover all regions in which the Services are provided and must have a minimum coverage of one million United States Dollars (US$1,000,000) and an annual aggregate of two million United States Dollars (US$2,000,000). Service Provider’s insurance policy required by this Section 14 shall be written by a company satisfactory to Thrive Lot and shall specifically name Thrive Lot as an Additional Insured and loss payee. Service Provider’s insurance coverage and policies shall state that the Additional Insured will receive at least thirty (30) days prior written notice of any cancellation. The original certificate and any notice of cancellation or change shall be sent to the addresses of the parties in accordance with this Agreement. The Insurance Certificate naming Thrive Lot as an Additional Insured and loss payee shall be sent to Thrive Lot before Service Provider delivers the Services. It is the obligation of Service Provider to pay the full amount of premiums due and/or any deductible amounts for Service Provider’s insurance policy.
21. Trademarks and Tradenames
Service Provider acknowledges that Thrive Lot is the exclusive owner or licensee of all right, title and interest in and to the name Thrive Lot and the trade names, trademarks, service marks, trade dress, collective marks, certification marks, symbols, logos, and other indicia of origin whether registered with a federal or state government or subsisting solely under the common law (collectively, the “Marks”), including without limitation all good will associated therewith, used in connection with the Thrive Lot Platform. Service Provider shall in no way (i) infringe upon, (ii) harm, or (iii) take any action that could be detrimental to the goodwill associated with the Marks or Thrive Lot. Service Provider shall not contest the rights of Thrive Lot in and to these Marks or any other intellectual property rights of Thrive Lot. Service Provider hereby renounces any goodwill that is generated based on Service Provider’s use of the Marks. Any right that Service Provider may obtain in the Marks, or any other intellectual property rights of Thrive Lot, as a consequence of Service Provider’s use thereof shall inure solely to the benefit of Thrive Lot. The Marks may only be used on or in connection with the Services offered to Customers, in the form and manner specified by Thrive Lot, or as otherwise approved by Thrive Lot in writing in advance. Service Provider may not use the Thrive Lot name or any of the Marks as part of Service Provider’s business name without the prior written consent of Thrive Lot. Upon expiration or termination of this Agreement, unless authorized by another agreement, Service Provider shall immediately discontinue all use of the Marks, including, but not limited to, , but not limited to, any and all use of such Marks on signs, stationary, advertising and other means of identification. Following expiration or termination of this Agreement, Service Provider shall in no way represent, whether passively or actively, that it is still providing Services through the Thrive Lot Platform. Service Provider shall promptly notify Thrive Lot of any suspected infringement or dilutions of any of the Marks, suspected false advertising including, but not limited to, use any of the Marks, or suspected acts of cybersquatting, typosquatting, or unauthorized use of any of the Marks as a metatag (collectively “Unauthorized Use”). Thrive Lot may determine what action (if any) will be taken in respect of any Unauthorized Use of any of the Marks. Service Provider shall cooperate with Thrive Lot in the prosecution of any legal action regarding the Unauthorized Use of any of the Marks. Service Provider shall not copy, reverse engineer, or reproduce the Thrive Lot Platform or in any way infringe the Marks or enable, assist or cause others to do so.
Service Provider hereby agrees to allow Thrive Lot to place the Marks on all Designs. Service Provider hereby agrees that Thrive Lot may use trademarks and service marks of Service Provider to promote the Thrive Lot Platform.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). The parties agree that Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). This Agreement, together with any other documents incorporated herein by reference, and related exhibits, schedules, and addenda (if any) constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Except as expressly provided otherwise in this Agreement, if any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts, including, but not limited to, by facsimile or other electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument. Headings appear solely for convenience of reference. Such headings are not part of this Agreement and shall not be used to construe it.
This Agreement may not be amended, by implication or otherwise, by any marketing material contained on Thrive Lot’s website or the Thrive Lot Platform. Nothing contained in this provision or this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.