Last Updated: December 30, 2024
1. Services. Elevate shall provide to Client the Services described in the Proposal. Elevate shall only be obligated to perform Services to the extent the same are set forth in the Proposal, and Client’s request or instruction to provide any services in addition to or different from the Services set forth in the Proposal will be subject to the Change Order procedure set forth in this Section 1 and may give rise to additional Fees (defined below) and/or Expenses (defined below) payable to Elevate.
In the event the Services set forth in the Proposal are performed in connection with one (1) or more buildings, offices, facilities, or venues owned, leased, operated, controlled, or otherwise related to Client (each, a “Venue”), the Services shall exclude all areas of the Venue other than the specific areas that are identified in the Proposal (such areas identified in the Proposal are referred to herein as the “Scope Areas”).
If Client wishes to change or supplement the scope, nature or Scope Areas of the Services, it shall submit details of the requested change to Elevate in writing (e-mail sufficing). Elevate shall, within a reasonable time (not to exceed fifteen (15) business days) after receiving such request, provide a written estimate to Client (e-mail sufficing) of (i) the likely time required to implement the change in Services and the resulting impact on any previously agreed upon Services schedule, (ii) any additional Fees and Expenses payable to Elevate in connection with such change in Services, and (iii) any other impact the change in Services might have on the performance of any other Services (including any Services related to a separate Proposal) (an “Impact Assessment”). Promptly after Client’s receipt of an Impact Assessment, the parties shall negotiate in good faith and agree in writing upon the terms of any necessary change or amendment to the terms of the Proposal (a “Change Order”). Neither Party shall be bound by any purported change to the scope, nature and/or Scope Areas of the Services being performed by Elevate pursuant to a Proposal or any additional Fees and/or Expenses payable therefor, unless and until a Change Order has been executed by the parties in accordance with this Section 1.
2. Fees. As consideration for Elevate’s provision of the Services, Client agrees to pay the fees described in the Proposal (the “Fees”), in accordance with the payment schedule and terms set forth in the Proposal. If payment timing and terms are not provided in the Proposal, Elevate will invoice Client for the Fees on a monthly basis at the start of each calendar month based on the Services completed in the previous month, and Client shall pay the amount of each invoice within thirty (30) days of receipt of the invoice. In the event payments are not received by Elevate within ten (10) business days after becoming due, Elevate may (i) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid, and (ii) suspend performance of all Services until payment has been made in full.
3. Expenses. Client shall reimburse Elevate for all out-of-pocket costs and expenses that are associated with the performance of the Services (“Expenses”), expressly including any Expenses expressly set forth in the Proposal, as documented in expense reports submitted to Client by Elevate with appropriate receipts and back-up documentation. Expenses may include, but are not limited to, costs of fabrication, production, printing, installation, and take-down of Deliverables (as defined below) (in each case, to the extent not included in the Fees), as well as travel costs for Elevate’s personnel providing the Services, including airfare, ground transport, hotel or other accommodations, and meals. Elevate will invoice client for Expenses at the times set forth in the Proposal, or if not specified, as incurred, and Client shall pay to Elevate all amounts shown as due thereon within thirty (30) days of receipt of the invoice.
4. Taxes. Client shall be responsible for and shall pay any sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity that may be applicable to the Services and/or any amounts payable therefor by Client (collectively, “Taxes”). Any Taxes currently assessed or which may be assessed in the future, that are applicable to the Services are for Client’s account, and Client agrees to pay such Taxes. Client acknowledges and agrees that (i) Client has not relied upon any advice from Elevate as to the necessity for withholding or the taxability of the Services, Client’s payment of the Fees, or any other payment(s) to be made by Client in connection with the Services, and (ii) Elevate has not made any representations regarding Taxes or the taxability of the Services, Client’s payment of the Fees, or any other payments to be made by Client in connection with the Services. Client hereby agrees that Client shall fully defend, indemnify and hold Elevate harmless from payment of any Taxes and any associated interest and/or penalties that are imposed upon it by any government agency at any time as a result of the provision of the Services; provided, that, in no event shall Client pay, be responsible for, or be required to indemnify Elevate on account of any taxes imposed on, or with respect to, Elevate’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
5. License to Client Content; No Other Rights. Client hereby grants, and/or shall procure the right to grant to Elevate, a non-exclusive, worldwide, non-transferable license to use, reproduce, modify, create derivative works of and sublicense the Client Content to the extent required in connection with Elevate’s provision of the Services.
“Client Content” means all Marks, materials, information, photography, writings, designs, film or video content, multimedia or audio content, or other creative content that is provided to Elevate by or on behalf of Client in connection with the Services; and “Marks” means the brands, trademarks, service marks, trade names, trade dress, corporate names, logos, symbols and other designations of source or origin under trademark and similar laws owned or controlled by any entity or person, including the goodwill of the business symbolized thereby, and related registrations and applications for registration.
Client acknowledges and agrees that, nothing contained herein shall be construed as an assignment, license or grant to Client of any right, title or interest in or to any Marks related to Elevate or any of its Affiliates. Client further acknowledges nothing contained herein shall be construed to assign, license or grant to Client any rights with respect to the name, likeness, signature or other attributes of any player, coach, or other employee of any professional sports team in any way related to Elevate or any of its Affiliates. “Affiliate” means, with respect to a party, an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party; and “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the possession of the power to direct the management and policies of such entity.
6. Client Responsibilities. In addition to any other responsibilities of Client expressly set forth in the Proposal, Client acknowledges that it shall be responsible for performing the following in connection with Elevate’s provision of the Services in a reasonable and timely manner:
a) coordination of any decision-making with parties other than Elevate, including any Third-Party Vendors;
b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
c) final proofreading of the Deliverables, and in the event that Client has approved Deliverables but errors, such as, by way of example and not limitation, typographic errors or misspellings, remain in the Deliverables, Client shall incur the cost of correcting such errors.
7. Ownership of Deliverables; Retained IP; No Clearance. Effective upon full payment by Client of all amounts set forth in the Proposal, Elevate hereby exclusively and irrevocably assigns, transfers and otherwise conveys to Client all right, title, and interest in and to any final deliverables set forth in the Proposal (the “Deliverables”), including without limitation all rights of copyright, trademark, or other intellectual property rights pertaining thereto. Upon Client’s request and at Client’s sole expense, Elevate shall assist Client in asserting, protecting and/or enforcing Client’s rights to the Deliverables assigned pursuant to this Section 7. Subject to the foregoing provisions of this Section 7, Elevate hereby waives any and all claims that Elevate may have now or may hereafter have in any jurisdiction to so-called “rental rights,” “moral rights” and all rights of “droit moral” with respect to the Deliverables and the results and proceeds thereof, and Elevate agrees to take all appropriate action and to execute any and all documents, necessary or reasonably requested by Client to establish, perfect, effectuate, and preserve Client’s rights in such Deliverables.
Notwithstanding the foregoing, Elevate does not assign to Client and hereby expressly retains all right, title and interest, including any associated copyright, trademark or other intellectual property rights, in, to and under (i) any creative content including, but not limited to, any designs or design concepts, elements, sketches, notes, photographs, drawings, specifications, visual presentations, or other alternate or preliminary designs and documents developed by Elevate, which may or may not be shown or delivered to Client for consideration, but which do not ultimately form part of the Deliverables (“Preliminary Works”), and (ii) all underlying work product, tangible files, computer files or digital files created or utilized by Elevate in connection with the Services and creation of the Deliverables (“Working Files”, and together with the Preliminary Works, the “Retained IP”). The Retained IP expressly includes any specific Preliminary Works produced by Elevate in its performance of the Services which are presented to Client but ultimately rejected or otherwise not selected for inclusion in the Deliverables, along with all associated Working Files, and the right to create copies or derivative works of such Preliminary Works. For the avoidance of doubt, the Retained IP shall not be deemed Deliverables, shall not be assigned to Client, and shall instead remain the sole and exclusive property of Elevate. In the event Client subsequently requests to acquire the rights to any Retained IP in addition to the rights to the Deliverables granted by Elevate, Elevate and Client shall discuss and negotiate in good faith the terms and conditions upon which such rights may be acquired from Elevate by Client (including any additional compensation payable to Elevate for such rights).
Client acknowledges, understands and agrees that Elevate has not and will not obtain clearance or registration of any intellectual property rights contained in the Deliverables delivered to Client, specifically including any intellectual property rights associated with any Client Content incorporated therein or referenced in the creation thereof. However, if, through an independent search conducted by or on behalf of Client, it is determined that any Deliverable developed by Elevate is not legally available for use by Client without infringing upon the rights of a third party, Client will have the right to select an alternative design, element or concept to replace such Deliverable. Client acknowledges that if such a replacement is deemed necessary, additional Fees and Expenses may apply to accommodate any necessary changes to the Services. Any such changes shall (a) be communicated to Client in writing in the form of an Impact Assessment, and (b) only be effective following execution of a Change Order, in each case, pursuant to the procedure set forth in Section 1.
8. THIRD-PARTY VENDORS. If Client contracts directly with any third-party vendor other than Elevate, including any fabricator, installer, printer, constructor, consultant, architect, or general contractor (each, a “Third Party-Vendor”), for the provision of any services that may be required in connection with utilizing, producing or installing the Deliverables developed by Elevate in connection with the Services, Client acknowledges and agrees that, notwithstanding any terms and conditions set forth in any other agreement, proposal, purchase order or legally binding document related to such services, Elevate shall not be responsible for and shall have no liability whatsoever to Client for the acts or omissions of such Third-Party Vendor, or for the quality of workmanship, delivery delays or any other factors that may have a financial or other impact on Client as it relates to the services provided by such Third-Party Vendor, regardless of whether Elevate assists Client in bidding, evaluating, negotiating with, selecting or monitoring such Third-Party Vendor. Without limiting the foregoing, Elevate shall be entitled to rely on the accuracy and/or completeness of services and information furnished by or on behalf of Client or Client’s Third-Party Vendors, in each case to the extent necessary in connection with Elevate’s provision of the Services.
9. PUBLICITY & PROMOTIONAL EFFORTS. Elevate and Client acknowledge and agree that they each will mutually commit to reasonable co-marketing and publicity opportunities regarding Elevate’s provision of the Services and/or the results thereof. Elevate and Client will work together in good faith and use best efforts to coordinate the timing, content and scope of such marketing and publicity, including, without limitation, a public acknowledgement of their relationship and the Services to be provided by Elevate, via and through endemic (sports and entertainment) industry media (e.g., Sports Business Journal, Sportico, VenuesNow, etc.) and Elevate-owned media platforms (e.g., website, social media platforms); provided, that the verbiage and content of such acknowledgement must be mutually agreed upon by Elevate and Client. Notwithstanding the foregoing, neither party will issue any press release or publication or engage in any other digital, social media, or earned publicity efforts related to the other party, written or oral, without having express prior written approval from the other party.
Client hereby grants to Elevate the right to photograph, record, video, film or otherwise visually capture all completed Deliverables and the right to use such photographs, recordings, video, film, or other visual materials (collectively, “Visual Materials”) in publications, exhibitions, or for other promotional purposes. In addition, Client hereby grants to Elevate the right to list Client and any applicable Venue and include the Visual Materials in Elevate’s promotional materials (including in pitch decks, on its website and/or on its social media platforms) and to discuss the nature and results of the Services provided by Elevate on an aggregated and/or generalized basis (including the creation of one or more case studies or similar overviews of the Services), in each case, to discuss industry-facing learnings, recount successes achieved through the provision of the Services, or otherwise to support Elevate’s future business engagements. For the avoidance of doubt, the license to Client Content granted by Client pursuant to Section 5 shall be deemed to include any use by Elevate of the Client Content in connection with promotional efforts undertaken by Elevate in accordance with this Section 9.
10. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation, general partnership, limited partnership, limited liability company or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; and (ii) it has the full right, power, and authority to grant the rights and licenses granted hereunder and to perform its obligations in connection with the Services.
In addition, Elevate represents and warrants to Client that (i) all Services to be rendered by Elevate hereunder shall be performed in a diligent, efficient, workmanlike and professional manner by qualified personnel; and (ii) Elevate will, in performing its obligations hereunder, comply with all applicable laws. Notwithstanding the foregoing, Elevate makes no warranty with respect to its provision of the Services or any Deliverables created thereby to the extent of factors outside of its control, including, without limitation, delays, failures to perform or negligent performance of any Third-Party Vendors engaged by Client in connection with the Services; defects in paper or printing; shipping or handling damages; or incorrect content, misspellings or other typographical errors in Deliverables provided to and approved by Client.
CLIENT ACKNOWLEDGES AND AGREES THAT, OTHER THAN THE REPRESENTATIONS AND WARRANTIES SPECIFICALLY PROVIDED IN THIS SECTION 10, ELEVATE HEREBY SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER RELATED TO ANY INTELLECTUAL PROPERTY OR OTHERWISE.
11. INDEMNIFICATION. To the fullest extent permitted by law, each party (in this case, the “Indemnitor”) shall indemnify, hold harmless and defend the other party (in this case, the “Indemnitee”), and the Indemnitee’s owners, shareholders, Affiliates, members, partners, employees, officers, directors, successors and assigns (collectively, the “Indemnified Parties”), from and against any and all, third-party claims, suits, or demands (collectively, “Claims”) resulting in any judgments, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses) (collectively, “Losses”), and which arise out of or relate to Indemnitor’s or Indemnitor’s employee’s, agent’s or other representative’s: (a) conduct that directly results in bodily injury and/or or property damage, (b) violation of law, (c) willful misconduct, (d) gross negligence, or (e) breach of this Agreement or any representation, warranty or covenant of the Indemnitor contained herein. In addition, Client shall indemnify, hold harmless and defend Elevate from and against any and all Losses incurred by Elevate in connection with any Claims asserting any actual or alleged infringement of a third-party’s intellectual property rights arising out of Elevate’s use of the Client Content in connection with its provision of the Services and/or the creation of the Deliverables. Such indemnification shall apply except to the extent that any such Losses result from the gross negligence or willful misconduct of the Indemnified Party seeking indemnification.
12. HAZARDOUS MATERIALS. Elevate shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at any applicable Venue or project site. Client hereby agrees to indemnify, hold harmless, and defend Elevate and its Indemnified Parties from and against any and all Losses arising out of or relating to any hazardous materials or toxic substances in any form at any applicable Venue or project site.
13. LIMITATION OF LIABILITY AND REMEDIES. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET FORTH HEREIN: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST REVENUES, LOST OPPORTUNITIES OR LOST DATA) RELATING TO OR IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; AND (B) EACH PARTY’S TOTAL LIABILITY, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE UNDER THE APPLICABLE PROPOSAL. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. INSURANCE. Elevate shall maintain the following insurance coverage for the duration of its performance of the Services:
a) Commercial General Liability with policy limits of not less than $1,000,000 for each occurrence and $2,000,000 in the aggregate.
b) Automobile Liability covering hired and non-owned vehicles with policy limits of not less than $1,000,000 per claim and in the aggregate, along with any other statutorily required automobile coverage.
c) Professional Liability, Errors and Omissions or similar coverage covering the negligent acts, errors and omissions in the performance of professional services with policy limits of not less than $5,000,000 per claim and $5,000,000 in the aggregate.
Elevate may achieve the required limits and coverage for the policies listed above through a combination of primary and umbrella/excess liability insurance, provided such primary and umbrella/excess insurance policies result in the same or greater coverage as those required herein. Client shall be named as an additional insured on Elevate’s Commercial General Liability and Automobile Liability insurance policies, and the additional insured coverage shall be primary and non-contributory to any of Client’s insurance policies and, solely to the extent expressly requested by Client in writing (e-mail sufficing), shall include a waiver of subrogation in favor of Client. Upon written request, Elevate shall promptly provide to Client certificates of insurance evidencing compliance with the insurance coverage requirements herein.
15. INDEPENDENT CONTRACTOR. The Parties acknowledge and agree that the Services performed by Elevate, its employees, agents or subcontractors shall be as an independent contractor for Client, and that nothing herein shall be deemed or construed to constitute a partnership, joint venture, employment relationship, or agency relationship between Elevate and Client.
16. ARBITRATION. Any controversies or disputes arising out of or relating to Elevate’s provision of the Services shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Elevate and Client shall select a mutually acceptable arbitrator knowledgeable about issues relating to the Services. In the event the parties are unable to agree to such a selection, each party shall select an arbitrator and the two (2) arbitrators in turn shall select a third (3rd) arbitrator, all three (3) of whom shall preside jointly over the matter. The arbitration shall take place in Charlotte, North Carolina, or such other place as is otherwise mutually agreed upon by the Parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations in connection with the Services.
17. GOVERNING LAW. These terms and conditions shall be enforced under and governed by the laws of the State, Territory, Province or Country where the Services are to be performed, without regard to its choice or conflicts of law principles.
