This End User License Agreement (the “ Agreement”) applies to any mobile applications or extension packages (including, without limitation, any updates thereto whether in general, limited or early access release) that Thrive Learning Ltd (Thrive) makes available (each an “ App” and collectively, “ Apps”).
By installing or using any Apps, you represent that
(i) you are employed or affiliated with a customer (“ Customer”) of Thrive (the “ Service”) that is subject to an agreement with Thrive with respect to the Services (a “ Customer Agreement”);
(ii) you are authorised by such Customer to use the Services (an “ Authorised User”); and
(iii) you agree to and will comply with the following terms.
If you are not employed or affiliated with Customer, are not an Authorised User, or do not agree to comply with the terms, you may not install or use the Apps and if you have already downloaded any Apps, you must uninstall and delete the same.
This Agreement is a binding Agreement between you and Thrive and supplements the terms of the Customer Agreement, solely with respect to use of the Apps. Your use of the Service via the Apps is governed by the Customer Agreement.
No third party operating system and platform provider (for example, Microsoft, Google or Apple) (each, a “ Third Party Platform Provider”) is a party to this Agreement. Any software license agreement in effect between you and the Third Party Platform Provider governs the use of your mobile device, including without limitation, any smartphone, tablet or other device running on the Third Party Platform Provider’s operating system (collectively “ Device”). Such Third Party Platform Provider may at any time and without notice restrict, suspend or terminate your use of the App or delete the App from the Device on which it is installed (or require Thrive to do any of the foregoing) without any compensation or refund to you or Customer from such Third Party Platform Provider or Thrive.
- Each App is licensed, not sold, to you for use under the terms of this Agreement. Thrive may update the terms that govern the Apps from time to time with an update or with notice to you. Title to and ownership of the Apps remains with Thrive and its licensors, including but not limited to all copyrights, trademarks, and the “look and feel” of the Apps. Except for the limited rights set forth herein, you do not acquire any interest in the Apps by virtue of entering into this Agreement. The Apps may contain third party software, such as open source. For more information on such third party software, see the documentation or summary which accompanies the Service.
- Any such license is non-transferable and limits you to use of the Apps only
(i) on Devices that you own or control or are authorised to use by Customer; and (ii) as permitted by the Third Party Platform Provider.
- You may not
(i) rent, lease, lend, sell, redistribute or sublicense the Apps; or
(ii) copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Apps, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Apps).
3. Privacy, data security and feedback
- You are responsible for the information or data you enter into the Service via the Apps (“ Data”), including the accuracy, quality, integrity, legality, reliability and appropriateness of the same. Thrive will not collect, use or disclose such Data, except to provide the Service, for back-up or testing purposes, or to exercise its rights under this Agreement and the Customer Agreement, or as directed or otherwise permitted by Customer. By using any of the Apps, you consent to the collection, use and disclosure of Data as described herein or in the Customer Agreement. The Apps may store Data and data supplied by the Service, including personally identifiable information, locally on your Device secured using industry standard security measures. You agree that Data may be owned and controlled by Customer.
- Subject to Section 2(a), Thrive may freely use information arising from your use of the Apps, without restriction or remuneration. Such use may include, but not be limited to:
(a) providing Services to you or Customer;
(b) improving or creating Thrive products and services;
(c) compiling statistical and performance information related to the Services or the Apps, and/or
(d) developing and distributing benchmarks and similar reports and databases. In no event will Thrive’s publication of any such information include any Data or be identifiable with respect to any person or entity.
- You may provide, at your discretion, or Thrive may request, input regarding the Apps and the Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Apps, the Services or another Thrive site, service or product (collectively “ Feedback”). You acknowledge and agree that any Feedback will be considered Thrive confidential information and Thrive will own all right, title and interest in and to such Feedback. Thrive will be entitled to use Feedback for any purpose without restriction or remuneration of any kind.
4. Term and termination
- This Agreement is effective until terminated or until your access to or use of the Service is terminated (whichever is earlier) by any person, including Customer, the Third Party Platform Provider or Thrive. This Agreement shall terminate immediately and automatically upon any termination of the Customer Agreement, and upon such termination, Customer, including you, shall cease all use of the Apps. Termination of this Agreement shall not entitle Customer or you to any refund, credit, or other compensation from Thrive.
5. Service level commitment and support
- Any service level commitment, warranty or support offering in effect between the Customer and Thrive, as set forth in the Customer Agreement or otherwise, shall not apply to the Apps. Thrive shall determine, in its sole discretion, the level of support it will provide for the Apps, if any, and any such support shall be subject to change without notice.
- Thrive does not provide any indemnification for the apps. The apps are provided “as-is” and without a warrant of any kind. Thrive expressly disclaims any and all representations, warranties and conditions, express or implied, including without limitation, representations, warranties and conditions of quality, performance, results, merchantability, fitness for a particular purpose or title, non-infringement of third party rights, and those arising by statute or otherwise in law or from a course of dealing or use of trade. Thrive does not represent or warrant that:
(i) the Apps will meet your requirements, or
(ii) the apps and the operation thereof will be uninterrupted, error free or secure; or
(iii) any defects in the apps will be corrected.
7. Limitation of liability
- To the extent not prohibited by law, in no event will Thrive be liable for personal injury, or for any special, incidental, indirect, exemplary or consequential damages, or be liable for loss or damage, lost business revenue, loss of profits, loss of data, or failure to realize expected profits or savings or any claim against you by any other person (even if Thrive has been advised of the possibility of same). Thrive’s entire liability, regardless of the form of action, whether based on contract or tort, including, without limitation, negligence, fundamental breach, or failure of the essential purpose of the agreement, shall in no event exceed the amount paid by you for the apps. Thrive reserves the right to change, suspend, remove, or disable access to the apps at any time without notice. In no event will Thrive be liable for the removal of or disabling of access to the apps. Thrive may also impose limits on the use of or access to the apps, in any case and without notice or liability.
8. Governing law
- This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to this Agreement, the application of both being expressly excluded.
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The parties hereto confirm that it is their wish that this Agreement as well as all other documents relating thereto, including notices, have been and will be drawn up in English only.
- You agree to comply with all export laws applicable to the Apps in effect from time to time. Thrive may assign this Agreement
(i) in whole or in part, or subcontract or delegate its obligations under this Agreement, to an Affiliate, and
(ii) in its entirety, without your consent, to its successor in interest in connection with a sale of all or substantially all assets or equity.
You may not assign all or part of this Agreement, without Thrive’s prior written consent. This Agreement will be binding upon and accrue to the benefit of the successors and permitted assigns of the parties. If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within this Agreement. No waiver of any provision of this Agreement will constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. Failure by Thrive to demand performance by you, or to claim a breach, of any provision of this Agreement will not constitute a waiver or otherwise affect the rights of Thrive