This Client Agreement (the “Agreement” or “Terms”) is entered into by and between ThankView, LLC (referred to interchangeably as “ThankView”, or the “Company”) and that client (the “Client”) identified in the Client Order Form (the “Order Form”). This Agreement governs the Client's relationship with, and use of all of the following: (i) the Company’s website, (ii) the Company’s mobile application or content; and (iii) any products and/or services made available by the Company (collectively the “ThankView Platform”). This Agreement is effective as of the date the Client clicks the “I Accept” button on the Order Form (“Effective Date”). If you are accepting on behalf of a Client, you represent and warrant that: (i) you have full legal authority to bind the entity on whose behalf you’re accepting this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If any of the foregoing warranties is untrue, please do not click the "I Accept" button on the Order Form.
1. Services and Support.
- Services. Subject to these Terms, ThankView will use commercially reasonable efforts to provide Client with the Subscription Services listed in the Order Form and reasonable customer support services (with Subscription Services defined in the Service Level Agreement and referred to throughout these Terms as “Services").
- Technical Support. Subject to these Terms, Company will provide Client with reasonable technical support services during regular business hours. Regular business hours are Monday through Friday, 9 AM EST to 8 PM EST.
- Site Maintenance. Company Services may be temporarily unavailable because of: (i) scheduled maintenance or for unscheduled emergency maintenance, either of which may be at the instigation or behest of either Company or a third-party provider; or (ii) other causes beyond Company’s reasonable control. Company will use reasonable efforts to provide advance notice by e-mail of any scheduled service disruption as determined by the Service Level Agreement (the “SLA”). Company guarantees that it will maintain an uptime of at least 99.9%.
- ThankView is Continually Evolving. The Services may change from time to time, at our discretion. Furthermore, also at our discretion, we may do any of the following at any time: (i) test any number of different versions of the Services, in order to modify or improve ThankView; (ii) create and add new features for ThankView and experiment with features; and (iii) stop (permanently or temporarily) providing the Services or any features within the Services to Client or to any other user or client. ThankView will use commercially reasonable efforts and timing to inform the Client administrators of any major change made to how their organization's ThankView appears to their recipients. Once so informed, Clients will be given the ability to opt out of the testing before their ThankViews are sent.
- Additional Purchases. Client may purchase additional features or services for the ThankView application. Purchases may be confirmed through a signed order form, an email confirmation, or purchased directly within the ThankView application. By purchasing the ODDER service, Client agrees to the ODDER SOW (with the SOW available on Company’s website at: https://thankview.com/odder_sow.Notwithstanding the foregoing, Company reserves the right to refuse any transaction if it determines, in its sole discretion, that any transaction is not in the best interests of Company or its clients.
2. Fees and Payment.
- Fees; Payment. The fees owed by Client 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 these Terms shall be in United States dollars. All amounts paid or payable hereunder are non-refundable.
- Termination for Nonpayment. If Client’s account is overdue (except with respect to fees or charges then under a reasonable and good faith dispute), in addition to any of the other rights or remedies available to Company hereunder, at law or at equity, Company reserves the right to, in its sole discretion, terminate this Agreement, provided that Company has provided Client fifteen (15) days prior written notice of its intention to terminate the Agreement and Client has failed to bring its account current during such period. Company shall have no liability whatsoever to Client, regardless of the theory of liability, as a result of any such termination of this Agreement, including but not limited to direct, indirect, consequential, punitive, or special damages.
- Taxes. Company's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Client 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 Client is responsible, the appropriate amount shall be invoiced to and paid by Client to Company unless Client provides Company with a valid and active tax exemption certificate authorized by the appropriate taxing authority.
- Expenses. Except as otherwise set forth herein or mutually agreed to by the parties in writing, each party will bear its own costs and expenses for its performance under these Terms.
- Payment In The Event Of Termination. Termination by Client of this Agreement, the Order Form, or any other termination of the contractual relationship between Company and Client will not, under any circumstances relieve Client of its obligation to pay for all amounts it has agreed to, including, but not limited to the value or cost of any Services Client does not use as a result of its early termination of this Agreement, the Order Form, or any other termination of the contractual relationship between Company and Client.
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) Client retains all right, title and interest in any video messages sent by Client (“Messages”) and replies to video message sent by a third-party to Client (“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, additions, expansions, and modifications thereto and all derivative works thereof. Other than as expressly set forth in these Terms, 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 these Terms, and solely in connection with providing recipients of Client’s Messages with access to the Thankview Platform and the ability to create Replies, Client grants Company a worldwide, transferable, non-exclusive license limited to the duration of the engagement plus two (2) years beyond its termination, together with the right to sublicense, use, distribute (directly and indirectly), modify, extend, and make derivative works from any User Content.
- Mark Usage Rights. Client grants Company 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. For all other purposes, before using Client’s Marks in a promotional context, Company will notify Client 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. Client 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 for Company to keep any Suggestion confidential. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the parties, Company shall be free to use, disclose, reproduce, commercialize, protect, own, license or in any way distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind, including, but not limited to on account of intellectual property rights.
4. Confidentiality; Proprietary Rights.
- Client Data. Unless otherwise provided for in these Terms, Client shall own all right, title, and interest in and to the Client Data (“Client Data” defined as “non-public data provided by Client to Company to enable the Company to provide Services”). Company shall have the right to collect and analyze Client Data and other information relating to the provision, use, maintenance, improvement, modification, and performance of the Thankview Platform and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom, with all of the aforementioned information, including Client Data to be known collectively as “Service Data”), and Company will be free, during and perpetually after the term hereof to: (i) use such Service 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 Service Data to any third-party for any reason provided that it does so in a way that Service Data is disclosed in a de-identified form.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of these Terms, 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 remedies available aside from injunction may be inadequate to properly protect the Disclosing Party’s interests.
5. Representations and Warranties; Disclaimer.
- Client Representations and Warranties. Client represents and warrants as of the Agreement Date and for as long as these Terms are in effect that all of the following are true:
- Client 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; or (D) malware or other material that Client knows, should know, or has reasonable grounds to believe, is or may be tortious, libelous, illegal, offensive, infringing, harassing, harmful, damaging, disruptive or abusive.
- Only in compliance with Company’s Terms and Policies, Client may from time to time engage in non-commercial or commercial messaging through Thankview to users. For any such messages (including any email or SMS text messages), Client shall be responsible for: (i) ensuring that such messaging includes only users who either have consented to receiving such messages or have not opted out of receiving such messages; and (ii) ensuring that the content of such messages, including, if applicable, any email headers, comply with the CAN-SPAM Act and any other applicable law, including, but not limited to all laws related to anti-spamming, consumer protection, data privacy, electronic commerce, false advertising, and unlawful materials or practices.
- If Client is an educational institution, Client certifies that it is FERPA-compliant with regards to education, personnel, student, and other records. Client shall also define “school officials” and “legitimate educational interest” broadly enough, as permitted by FERPA, to permit Company to provide the Services to Client. Company will maintain the confidentiality of personnel, student, and other records in accordance with the requirements of applicable law.
- Client agrees that it will not upload protected health information (“PHI” as that term is defined by the Health Insurance Portability and Accountability Act of 1996) (“HIPAA”) into the ThankView platform, and that furthermore it shall not use the ThankView platform or Services in any way to transmit, view, access, or store any PHI In no event shall Company be responsible for Client’s failure to comply with the foregoing.
- Client will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, processes, software, ideas, know-how or algorithms relevant to the Thankview Platform or any software, documentation or data related to any of the foregoing; (ii) 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); (iii) use the Thankview Platform for timesharing or service bureau purposes or otherwise for the benefit of any third party; or (iv) remove any proprietary notices or labels.
- Client will obtain and maintain at its sole expense and risk 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”).
- Client will use best efforts to secure its Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
- None of Client’s Messages will infringe or violate any party’s rights, including intellectual property rights, rights of publicity, or misappropriation of trade secrets.
- Company Representations and Warranties. Company represents and warrants as of the Agreement Date and for as long as these Terms are in effect that:
- Company and all Company employees (“Company Personnel”) are duly qualified, will use best efforts in providing the Services, and will provide the Services and all related services, including, without limitation, implementation and support services, in a professional and workmanlike manner and in compliance with all specifications and applicable laws, rules, regulations and orders, using duly qualified, licensed and trained personnel.
- Company is compliant with all applicable federal, state, county and local laws, ordinances, regulations, and codes in the performance of its obligations under this Agreement.
- Company’s Services at the time of delivery to Client, shall be free of viruses, material defects, worms, Trojan horses, destructive mechanisms, hidden or locked files, code that would cause any of the deliverables to replicate, transmit or activate itself without control of a person operating the computer equipment on which it resides, code that would alter, damage or erase any data or computer programs without control of a person operating the computer equipment on which it resides, any key, node lock, time-out, “back door,” “trap door,” “booby trap,” “drop dead device,” “data scrambling device,” or other similar illicit code.
- COMPANY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, COMPANY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO 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, costs of litigation, and amounts awarded by a court of competent jurisdiction or agreed upon in settlement) arising out of all of the following: (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; and (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 THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FULL CONTRACT VALUE.
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CLIENT 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 CLIENT OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS RESTRICTED BY LOCAL OR STATE LAW, THE FOREGOING LIMITATION OF LIABILITY SHALL ONLY BE RESTRICTED SO AS TO ALLOW THE FOREGOING LIMITATION TO APPLY AS BROADLY AS POSSIBLE.
8. Third-Party Services.
Third Party Services. The Company may rely on third-parties or third-party services (collectively, “Third Party Services” and individually a “Third Party Service”) to provide the Services. These Third Party Services are not subject to any of the warranties, service commitments, or other obligations under these Terms. The Company does not control any Third Party Services and will not be liable to the Client for any damages arising out of or related to any Third Party Services. [[Although Client agrees and acknowledges that Company does not in any way control any Third Party Services, Company hereby agrees to indemnify Client for Client damages resulting from Client’s use of Third-Party Services in connection with Company providing Client the Services: (i) only up to the Full Contract Value; and (ii) only where such damages are the result of Third-Party’s proven malfeasance or willful misconduct.]] 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. In order to provide Client with Services, Company may need to engage or enable any number of Third Party Services. Client hereby expressly authorizes the Company to disclose Proprietary Information to the extent necessary for Company and/or Client to utilize the Third Party Services. CLIENT’S USE OF THIRD PARTY SERVICE IS AT CLIENT’S OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICE OR IMPOSED BY SUCH THIRD PARTY (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 Client 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 $4,000,000.
9. Term and Termination.
- Subject to earlier termination as provided below, these Terms shall be effective as of the effective date on the Order Form and shall remain in full force and effect until the first anniversary of the Effective Date (the “Initial Service Term”). The Company shall contact Client with a minimum of ninety (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 written notice (or with fifteen (15) days written notice by Company in the case of nonpayment by Client); and (ii) immediately, for any reason in the case of any Client using the Free Trial. All sections of these Terms, 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).
- Upon any termination or expiration of this Agreement, with or without cause: (i) each party shall immediately discontinue any use of the Marks, products, or services of the other party; (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. Upon termination, all outstanding balances including any fees, fines, penalties or additions thereto, shall become immediately due and payable within fifteen (15) days of the date of written notice of termination of this Agreement. Also upon termination of this Agreement, with or without cause, Client’s access to the Services shall be immediately terminated. Company shall under no circumstances be liable for any damages or harm whatsoever resulting from Client’s access to Services being so terminated, or terminated in any other way provided for or pursuant to the terms of this Agreement.
- Relationship of Parties. The parties are entirely independent 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, joint venture, or employment arrangement of any kind.
- Non-exclusive. Nothing contained in these Terms shall be construed as creating an exclusive relationship between Client and Company.
- Taxes. Each party shall be solely 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 any earnings recognized by such party. If Client is tax exempt, Client shall provide Company with a valid and active tax exemption certificate authorized by the appropriate taxing authority.
- Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Client’s primary location or headquarters (“State”), 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 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. These Terms 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 these Terms 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 these Terms 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 these Terms 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.