I received a phone call offering schooling for selling on Ebay back in early January through a company called Thrive. They kept hounding me and hounding me and the deal kept getting sweeter and sweeter, they then guaranteed I would make all my money back inside of 6 months. That sold me, I don't know why, but when I hear the word "Guarantee", My brain goes off line. So finally on January 17 I submitted my credit-card number. I got a customary 10-day waiting period and I was contacted by a Mr. Drew Gunderson (Then president of Thrive) with my login information to the Thrive Site. Training was not at all like what I was told. I was told it would be more or less 1 on 1, and help would be a phone call away. I grudgingly completed 9 or 10 "lessons", which consisted of watching a streaming video. I then received a emergency phone-call from China and I had to go there on Feb. 20 for about 6 months. So, I contacted Thrive and had my account "Held" until I returned. I got done early and returned in early Sept. My account name was changed and I couldn't log in until late November. (I kept emailing customer service, and they kept sending me passwords that didn't work.) This kept up for awhile. I was contacted by a Mr. Zach Bradshaw, who said he was the head of Thrive (Replacing Mr. Gunderson) in February and told mehow to login, etc. He must not had been too convinced that I could do this, sohe inquired as to how I connected to the internet. I have a DSL connection so I can be on the phone and the net at once. He said he was going to send me something in email and I should click on it when it comes. It came, I clicked, and my firewall went up, he asked me to disable it and try it again, like a dummy I did. Turns out, it was a program that gave TOTAL control of all functions to his computer. He logged me in, checked my account preferences, then asked if I had any questions. I was so awestruck, I just said "no" and he hung-up. I ran a complete scan of my computer, found what the program was and deleted it. The very next boot-up, my hard-drive crashed. I don't know if Mr. Bradshaw's "Stunt" did this, but the coincidence is there. I then filed a complaint with the Utah BBB against Thrive and found that my first complaint had been "tampered" with so it looked like I was complaining against a bakery in Carson City. I fixed that back to the way it was and filed a follow-up. Three weeks later, Mr. Bradshaw contacted me again and told me he'd like to settle for $350.00 and the rest would come from Internet Sales. He didn't have any contact information for them, didn't even have their address. Still, I said I'll look at his form. He sent the form I needed to fill-out and fax back, but I wanted to print it out on another computer. So, I went to the library. They have the newer. PDF Reader there, so more information appeared on the form that I saw on my computer. It said that I would forfeit all rights to collect any money from anybody else. Needless to say, I didn't sign. That brings me to you. I'll paste a copy of it here:
Release
This Settlement Agreement and Release (the “Agreement”) is entered into by and between Jack Dusan (“Customer”) and Thrive Learning LLC. (“Thrive”).
WHEREAS: the parties now desire to resolve their differences and to fully, finally and forever release, settle and dispose of any and all claims, demands and disputes of any kind between them, as provided for in this Agreement;
NOW THEREFORE, in consideration of the promises and covenants contained herein and other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
1. Consideration: 1.2 Upon the effective date of this Agreement, Thrive shall pay Customer a sum of Three Hundred Forty Five Dollars ($345.00) in consideration for the release of all claims by Customer against Thrive, and each of their respective parent corporations, subsidiaries, affiliates, including third party companies whose products were Thrive or supported by Thrive, their officers, directors, successors, assigns, representatives, attorneys and all persons acting by, through, under or in connection with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs or expenses, of any nature whatsoever, known or unknown, fixed or contingent, derivative or personal (hereinafter called “Claims”) which the Customer, or anyone claiming through or on behalf of it, now owns or holds or has at any time owned or held against Thrive.
1.3 The Three Hundred Forty Five Dollars ($345.00) payment referenced in paragraph 1.1 above shall be a lump sum payment made by check payable to Customer. 2. Assignment: Customer hereby represents and warrants that there have been no assignments or other transfers of any interest in the Claim (s) that it may have and which could be asserted against Thrive. Customer agrees to indemnify and hold harmless Thrive from any liability, claims, damages, demands, costs, expenses and attorneys’ fees incurred by any of the Customers as a result of any person asserting any such assignment or transfer or any rights or Claims under any such assignment or transfer.
3. No Admission: This Release is not an admission of any fact by Thrive or by Customer and it cannot be used in any proceeding, other than a proceeding to enforce its terms, for any purpose whatsoever.
4. Authority: Each of the parties signing this Release, whether signed individually or on behalf of any person or entity, represents and warrants that he or she (a) has full power and authority to enter into and execute this Release and (b) has the full authority to bind the party or parties for whom he or she is signing.
5. Attorney’s Fees and Costs: 5.1 Current Dispute: The parties agree that they shall bear their own attorneys’ fees and costs incurred in connection with this matter, including, without limitation, all attorneys’ fees and costs incurred by them in connection with the Action, and/or this settlement.
5.2 Future Dispute: If any party hereto should (a) bring any action, suit or other proceeding against any other party or any person released by it hereunder on any Claim, (b) contest the validity of this Release, (c) attempt to enforce this Release, (d) attempt to obtain any remedy or relief for any breach of this Release or any representation or warranty set forth herein, or (e) attempt to rescind, negate, modify or reform this Release, or any of the terms or provisions hereof, the prevailing party in any such proceeding shall recover its reasonable attorneys’ fees incurred in each and every such proceeding, including any and all appeals or petitions there from.
6. Advice of Counsel: Each of the parties represent and warrant to the other party that they have executed this Release with full knowledge of any and all rights which they have or may have and that they do not rely and have not relied upon any representations, warranties or statements made by any of the other parties hereto. Each of the parties hereto represent, warrant, and acknowledge that they have had the opportunity to avail themselves of the independent counsel of their own choosing.
7. Effective Date: This Agreement shall become effective and enforceable at such time as it has been signed by both parties. 8. Accord and Satisfaction: Each of the parties hereto acknowledge and agree that this Release is an accord and satisfaction of all Claims that Customer may have against Thrive; all prior documents and all negotiations and stipulations by them or their agents being merged herein.
9. Section or Paragraph Heading: Headings have been inserted herein solely for convenience and reference and shall not be construed to affect the meaning, construction, or effect of this Agreement.
10. Entire Agreement: This Agreement shall constitute the entire agreement between the parties, and shall fully supersede any and all prior agreements or understandings, oral or written, between the parties pertaining to the subject matter hereof. The Agreement is an integrated agreement.
11. Invalid Provision. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision of this Agreement, which shall remain in full force and effect.
12. Governing Law Venue and Interpretation. All questions concerning the construction, validity, and interpretation of this Release and the performance of the obligations imposed by this Release shall be governed by the laws of the State of Utah. The Parties agree that venue shall be a Court of competent Jurisdiction in Salt Lake County, Utah.
13. Non Disparagement: Customer agrees not to defame or in any way disparage Thrive or to discuss the terms of this settlement or any transactions whatsoever he/she has had with Thrive with any person, party, entity, agency unless compelled to do by operation of law. Customer further agrees not to without the agreement of Thrive contact any member of the media, post on any chat board, assist another in posting negative comments about Thrive, either directly or indirectly, or in any manner engage in any activities which may be detrimental, directly or indirectly, to the interests of Thrive, whether such interests be property, reputation, or otherwise, including showing up at properties where Thrive is conducting seminars. Customer agrees that if he/she violates this agreement he/she shall owe liquidated damages to Thrive at the minimum amount of $25,000.00.
14. Breach: In the event that Customer breaches this contract, including but not limited to, posting or assisting another to post negative comments about Thrive on the Internet the Distributor fail to return, Customer agrees that damages would be difficult to determine, that the Company would suffer irreparable harm, and that the Company would be entitled to an appropriate restraining order, specific performance, temporary and permanent injunctions, actual and exemplary damages, attorneys’ fees, court and/or arbitration costs and other related expenses, as well as any other remedy allowable by law.
15. Binding Effect and Severability: This Release shall be binding upon and inure to the benefit of each of the parties, their respective heirs, permitted assigns, successors in interest and legal representatives. Neither this Release nor any of the rights or obligations hereunder may be assigned without the prior written consent of all the parties hereto.
IN WITNESS WHEREOF, Customer has caused this Agreement to be duly executed as of the date set forth below. Dated this day of. % Customer Name: Thrive Learning, LLC. Dated this day of.By: % Its: % &Jack Dusan
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