Platform Terms of Service

TAGFI PLATFORM TERMS OF SERVICE

‍These Terms & Conditions (“Terms”) consist of the general terms and conditions below and all Service Orders between Company and ThriveWell, Inc. d/b/a TAGFI (“TAGFI”) and other attachments hereto and thereto.  Company and TAGFI are collectively referred to as the “Parties” and individually as a “Party.”

‍1.             Services.  TAGFI shall provide certain software, functions, deliverables, and services (collectively, the “Services”), as specified in the proposal to which this Agreement is attached (the “Service Order”) during the Term specified in the Service Order.

1.1 Software; Applications. TAGFI will provide access to and use of a unique instance of TAGFI’s proprietary software application (the “Platform”), which will be branded and configured for the Company and shall include the implementation and support services described in the Service Order.

1.2 Delivery.  TAGFI shall perform the Services on a commercially reasonable basis using generally acknowledged technological advancements and improvements in the methods of delivering the Services at the times specified in a Service Order.

‍2.   Ownership, License and Restrictions.

‍2.1          Ownership of Software. The Platform, all related software, source codes and other materials, and all intellectual property rights therein or otherwise derived from or developed within the scope of the Services (the “IP”) shall be the sole and exclusive property of TAGFI.

2.1          Ownership of Data. The data within the Platform (the “Customer Data”) shall be co-owned by Company and TAGFI. TAGFI has strict data privacy and security protocols and will not share any Customer Data with any third parties unless doing so is necessary to provide the Services, such as the Third-Party Software providers in the Service Order. Customer Data will only be used by TAGFI for the purpose of improving the Services.

2.2          License. During the Term and subject to Company’s full and continued compliance with the terms and conditions of this Agreement, Company shall have the non-exclusive, revocable, non-transferable, royalty-free right and license to the Platform: (a) for its own internal purposes; (b) to serve its members, customers, community, sponsors, and other partners; and (c) to carry out its business operations. Company shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Company shall not at any time, directly or indirectly, and shall not permit any person to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or documentation; or (v) use the Services or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Notwithstanding the foregoing, the restrictions in this section are not intended to prevent Company from fully utilizing the Platform for its business operations.

‍3.   Termination

‍3.1          Term.  The term of these Terms shall commence on the Effective Date and shall continue in effect until the expiration of the term of the final Service Order between Company and TAGFI, including any initial and renewal terms, unless earlier terminated in accordance with Section 3.2 of these Terms. The term, including any initial and renewal terms, of each Service Order shall be stated in such Service Order. The termination or expiration of the Terms shall terminate any existing Service Orders. No new Service Orders may be entered into under the Terms by the Parties after expiration or termination of the Terms.

3.2          Termination.  Company and TAGFI will each have the right to terminate these Terms upon (i) notice of a material breach of any obligation hereunder or under a Service Order by the other Party, if such material breach or failure is not cured within thirty (30) days following the date the non-breaching Party gives the other Party notice setting forth in reasonable detail the elements of such breach; or (ii) assignment of this Agreement due to a Change of Control (as defined in Section 8.9), unless such assignment has been previously consented to in writing by the other Party.  Upon any Change of Control affecting Company, to which TAGFI has not consented to in writing, these Terms shall automatically terminate, and any outstanding fees for services delivered and billed pursuant to the Service Order, as yet unpaid shall immediately accrue and become payable to TAGFI. Notwithstanding the foregoing, TAGFI may terminate these Terms at any time upon 45 days’ written notice to Company, provided that TAGFI refunds to Company any payments made for services which will not be rendered prior to the date of termination.

3.3          Events Upon Termination. Upon the expiration or termination of these Terms for any reason, Company shall promptly cease all use of the Platform. TAGFI will send all commercially reasonable Customer Data to the Company or make it available through the Platform. All Fees and other charges that have accrued under any Service Order as of the date of termination or expiration will remain payable to TAGFI. The following provisions of these Terms shall survive: 4,6,7, and 8.8.

‍4.   Confidentiality & Retained Rights

‍4.1          Definition.  For the purposes of this Agreement, “Confidential Information” means (i) all non‑public information of a Party and its affiliates, and information pertaining to such Party’s business strategy, activities and operations (whether as then being or as proposed to be conducted, reports, ideas, concepts, know-how, techniques, technology, designs, specifications, drawings, diagrams, data, code, marketing plans, strategies, customer lists, suppliers, sources of materials, financial information, pricing information, business relationships, employees, trade secrets, and other technical or business information and any information, data or reports prepared or compiled under this Agreement so long it is marked as confidential or proprietary at the time of disclosure or, based on the nature of the information or the manner in which it is disclosed, a reasonable person in the same industry would interpret that the information is confidential and (ii) the existence and terms of this Agreement.  Confidential Information will not be deemed to include any information which (w) is publicly known at the time of the disclosure; (x) becomes publicly known other than by breach of this Agreement; (y) becomes known to the disclosing party, without restriction, from a source free of any obligation of confidentiality; or (z) is independently developed by or already in the possession of the disclosing party without the benefit of the other party’s Confidential Information, as shown by valid records.  The IP shall be deemed TAGFI’s Confidential Information.

4.2           Restrictions.  Each Party agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement to facilitate the authorized uses of the IP as expressly set forth in this Agreement, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.  Furthermore, the parties will not disclose to any person that Confidential Information has been made available by the other party or any of the terms, conditions, or other facts with respect to this Agreement, including the status and/or existence of this Agreement, except to the extent permitted in the following sentence.  Notwithstanding the foregoing, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, regulation or court order including without limitation, disclosures or filings with regulatory agencies, such as the United States Securities and Exchange Commission.  A party may also disclose Confidential Information: (i) on a “need-to-know” basis, under a contractual obligation of confidentiality at least as strict as that set forth in this Section 4.2, to its legal counsel, accountants, and financing sources and their advisors, or (ii) to the extent authorized by the other party in writing.

4.3          Retained Rights.  As between the Parties, and except as otherwise set forth in this Agreement, each Party retains all right, title and interest in and to its Materials and Marks.  Each Party reserves all rights not expressly granted to the other Party under this Agreement.  “Marks” shall mean the trade names, logos, trademarks, and service marks provided by one party, directly or indirectly, to the other party for use hereunder including.  “Materials” shall mean, collectively, any content, links, marks, functionality, technology, websites, modules, and/or other information, technology, products, services, rights and materials owned, operated, marketed, provided by, and/or distributed by the party, including, without limitation, all related patents, patent rights, trademarks, service marks, copyrights, works of authorship, trade secrets and other proprietary interests.  The Platform shall be deemed TAGFI’s Materials.

4.4          License. TAGFI and Company hereby grant each other a non-exclusive, worldwide, revocable, non-transferable license and right to use and reproduce each other’s names, logos, trademarks, and domain names for promotional purposes during the term of this Agreement.

4.5          Third-Party Software. TAGFI utilizes third-party products embedded within or connected to the Platform (e.g. Stripe, AWS, Google Analytics), in service of the Company. Third-party products may be subject to their own terms of service.

‍5.   Representations; Warranties; Disclaimer.    Each party represents that (i) it has the full power and authority to enter into this Agreement and to perform the obligations contained in this Agreement; and (ii) its entry into, and performance under this Agreement, will not violate any law, statute or regulation or result in a breach of any material agreement or understanding to which it is bound. Except as expressly provided in this Section 5 or a Service Order, all IP is provided “as is” without any warranty of any kind and TAGFI hereby disclaims all warranties, express, implied or statutory, including without limitation any implied warranties of merchantability or fitness for a particular purpose.  No guarantee is made as to the accuracy or completeness of the Data or that any specific outcome will be obtained from its use.   Notwithstanding the foregoing, TAGFI will use commercially reasonable efforts to correct material defects in the Dataset reported by the Company in a timely manner (but any event during the term of this Agreement).

‍6.   Limitation on Liability.  UNDER NO CIRCUMSTANCE WILL EITHER PARTY, ITS AFFILIATES OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES OR LICENSORS FOR ANY OF THE FOLLOWING: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES; OR (II) LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS ADVANTAGE, LOST OPPORTUNITY OR RELATED HARMS, EVEN IF THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. In addition, except for TAGFI’s fraud or willful misconduct, TAGFI’s maximum aggregate liability for any and all damages of any kind or nature arising under or in connection with this Agreement shall not exceed the amounts paid by Company under this Agreement during the 12 months prrior to the date on which such cause of action arose. THE PARTIES EXPRESSLY AGREE THAT THIS LIMITED REMEDY IS REASONABLE AND APPLICABLE TO IT EVEN IF THE DELIVERABLES FAIL IN THEIR ESSENTIAL PURPOSE.

‍7.   Indemnification.

7.1 Indemnification by TAGFI.  TAGFI shall indemnify, defend, and hold harmless Company and its officers, directors, employees and agents (collectively, the “Company Indemnitees”) against all losses (including without limitation damages, fees, costs or attorneys’ fees) directly incurred by the Company Indemnitees in connection with (i) any claim by a third-party arising from TAGFI’s material breach of this Agreement, (ii) any breach by TAGFI of its representations and warranties contained in this Agreement, or (iii) any act or omission resulting from TAGFI’s gross negligence, fraud or willful misconduct; provided, that, in each case, TAGFI shall not be obligated to indemnify the Company Indemnitees under this Section 7.1 to the extent such any claims arise from any IP that (a) has been modified after such IP was provided by TAGFI, or (b) combined with other data or materials.

7.2 Indemnification by Company. Company shall indemnify, defend, and hold harmless TAGFI and its officers, directors, employees, and agents (collectively, the “TAGFI Indemnitees”) against all losses (including without limitation damages, fees, costs or attorneys’ fees) directly incurred by the TAGFI Indemnitees in connection with (i) any claim by a third-party arising from Company’s material breach of this Agreement, (ii) any breach by the Company of its representations and warranties contained in this Agreement,  (iii) any act or omission resulting from Company’s gross negligence, fraud or willful misconduct or (iv) any claim by a third-party that material featured on or included in the Platform at Company’s request or direction violates any third party’s intellectual property rights or rights of publicity. Without limiting the foregoing, Company shall reimburse and shall be liable for any reasonable attorney fees and collection costs and expenses associated with TAGFI’s efforts in collecting fees owed by Company to TAGFI.7.3 Indemnification Procedure.  If either Party becomes aware of a claim for which it is entitled to indemnification pursuant to this Agreement, such Party shall promptly provide the other Party with notice regarding the applicable claim; provided that the failure of a Party entitled to indemnification under this ‎Agreement (the “Indemnified Party”) to promptly provide such notice shall not relieve the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) of any obligation it may have to indemnify, except and only to the extent that the Indemnifying Party’s ability to fulfill such obligation has been actually and materially prejudiced thereby.  The Indemnified Party may participate in the defense of a claim subject to indemnification hereunder with its own counsel paid for by the Indemnified Party.  The Indemnified Party shall, at the Indemnifying Party’s expense, cooperate fully with counsel selected by the Indemnifying Party in the defense of such claim.  The Indemnifying Party may not, without the Indemnified Party’s prior written consent, settle, compromise or consent to the entry of any judgment in any such commenced or threatened claim, unless such settlement, compromise or consent:  (A) includes an unconditional release of the TAGFI Indemnitees or Company Indemnitees, as applicable, from all liability arising out of such commenced or threatened claim; and (B) is solely monetary in nature and does not include (i) any restriction on the ability of the Indemnified Party to use the Data, or any other remedial measures, or (ii) a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, the TAGFI Indemnitees or Company Indemnitees, as applicable.

‍8.   Finance

‍8.1 Company Revenue: Company will be able to set pricing for products sold through the Platform (e.g. membership, sponsorship, advertising, donations), at its discretion. TAGFI will provide commercially reasonable support in guiding the Company on such prices. Company agrees for TAGFI to be the primary method of collecting payments for the products sold via the Platform. All Revenues processed by the Platform net of fees as per the applicable Service Orders will be deposited daily into the Company’s Stripe account. The Company can make transfers from the Company’s Stripe account to your bank at its sole discretion.

8.2 Taxes: All Fees and other amounts payable by Company under this Agreement are exclusive of taxes and similar assessments. Company 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 Company hereunder, other than any taxes imposed on TAGFI’s income.

8.3 Payment Terms: TAGFI will invoice the Company in accordance with the Service Order and the Company has Net 30 terms to complete payment. TAGFI will automatically deduct its fees for payments processed by the Platform and new revenues generated by the Platform in accordance with the applicable Service Order.

‍9.   General

‍9.1          No Agency or Joint Venture.  The Parties agree and acknowledge that the relationship of the Parties is in the nature of independent contractors.  This Agreement will not be deemed to create a partnership or joint venture, and neither party is the other’s agent, partner, employee, or representative.

9.2          Notices.  Any notice, approval, consent, request, authorization, direction or other communication under this Agreement will be given in writing (email will suffice).

9.3           Entire Agreement, Modification, Waiver; Survival.  This Agreement, including the exhibits hereto, contains the entire understanding of the Parties hereto and supersedes all previous agreements or arrangements between the Parties hereto relating to the subject matter hereof.  This Agreement cannot be changed or modified except by an instrument signed by authorized signatories of the parties.  A waiver by either party of any term or condition of this Agreement in any instance will not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof.  Should any provision of this Agreement be adjudicated by a court of competent jurisdiction as void, invalid or inoperative, such decision will not affect any other provision hereof, and the remainder of this Agreement will be effective as though such void, invalid or inoperative provision had not been contained herein.

9.4          Construction.  This Agreement will be fairly interpreted and construed in accordance with its terms.  Each party has had the opportunity to consult with counsel in the negotiation of this Agreement.

9.5          Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.

9.6          Remedies.  To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the parties at law or equity.

9.7          Headings.  The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.

9.8          Governing Law.  This Agreement will be governed and interpreted in accordance with the laws of the State of New York without regard to principles of conflict of laws. The parties agree to the exclusive jurisdiction to the state and federal courts located in the City of New York, New York.

9.9          Assignment.  Neither Party may assign this Agreement, or any rights hereunder, without the other Party’s prior written consent. For purposes of the preceding sentence, an assignment includes any transfer or conveyance, by operation of law or otherwise, in connection with a change of control in the ownership of more than fifty percent (50%) of the voting capital stock of a party or any affiliate thereof that directly or indirectly owns such party, or sale of all or substantially all of such party’s assets (any such merger, change of control in ownership of voting capital stock, or asset sale, a “Change of Control”).   Notwithstanding the first sentence of this Section 8.9, TAGFI may assign this Agreement without consent, (i) in connection with a Change of Control, and (ii) to any affiliate, parent or subsidiary of TAGFI.  Any attempted assignments without prior written consent shall be null and void.

10.   Monetization Services

10.1          For Group software customers on TAGFI platforms, Client acknowledges that TAGFI is investing significant resources into monetization. TAGFI makes its investments and staffing decisions based on the percent platform fees, with a long-term mindset. As such, the revenue share from the Premium Group on TAGFI's platform cannot cannot be removed or reduced after it is signed. That said, if Client wants to add additional services to its current package accompanied by an increased revenue share, that is acceptable and can be mutually confirmed in writing. Regarding the annual or monthly subscription fees paid out-of-pocket by the Client, this Agreement can be cancelled by the Client anytime with a 30-day notice. However, after cancellation, all Premium Group content, members, plans, and revenue will remain on the TAGFI platform, and TAGFI reserves the right to put a new group admin in place.