These Terms and Conditions are applicable to any executive search engagement undertaken by Elevate Talent Inc.
1. Payment Terms; Taxes.
(a) All amounts payable by Client under this Agreement will be paid to Elevate without setoff or counterclaim, and without any deduction or withholding. Elevate’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of Elevate’s right to unpaid amounts. If Client fails to make timely payment of any Search Fees, Expenses or any other amounts due to Elevate under this Agreement, Elevate may, in its sole discretion, take any or all of the following actions: (i) pause the Search and suspend provision of all Services until such time as Client has made payment in full of all amounts invoiced and due to Elevate hereunder or (ii) upon delivery of written notice of default to Client and Client’s failure to cure such default within fifteen (15) days of receipt of said notice, terminate this Agreement without any liability or further obligation to Client, and accelerate the payment of all invoiced but unpaid Search Fees and reimbursement for all Expenses incurred or committed without recourse to cancel such that any invoiced but unpaid Search Fees and all Expenses incurred or committed without recourse to cancel shall be deemed immediately due and payable in connection with such termination. Elevate shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Client’s obligation to pay the Search Fees and any Expenses incurred prior to the termination of this Agreement in accordance with the terms hereof shall survive the termination or expiration of this Agreement for any reason.
(b) The Search Fees are exclusive of, and Client shall be responsible for and shall pay, any sales, use and excise taxes, value added taxes (VAT), 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 Search Fees, Expenses, or any other payment(s) to be made by Client under this Agreement, and (ii) Elevate has not made any representations regarding Taxes or the taxability of the Services, Client’s payment of the Search Fees, Expenses, or any other payments to be made by Client under this Agreement. 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 pursuant to the terms of this Agreement; provided, that such indemnification shall not extend to any Taxes to the extent imposed upon or calculated with respect to Elevate’s net income, assets, payroll, property and employees.
2. Changes to Brief.
(a) Elevate shall undertake the Search in accordance with the Brief established by the Parties in connection with Elevate’s provision of the Services. To the extent Client wishes to materially alter or modify the Brief following Elevate’s commencement of the Search in accordance with the strategy developed by Elevate and approved by Client, including, by way of example and not limitation, modifying the title, level, Annual Compensation, location, reporting line, and/or job description for the Position, then Client must communicate the same in writing to Elevate (e-mail sufficing). Elevate shall, within a reasonable time (not to exceed ten (10) 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 the Brief and associated Search strategy and the resulting impact on any previously agreed upon timeframe for placing a Candidate in the Position, (ii) any additional Search Fee payable to Elevate in connection with such change in the Brief and associated Search strategy, and (iii) any other impact the change in Brief and/or associated Search strategy might have on the performance of any other Services (including any Services related to a separate Search) and/or Elevate’s other obligations under this Agreement (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 this Agreement (a “Change Order”). Elevate shall not be bound by any purported change to the Brief and/or associated Search strategy until (x) the Parties have executed a Change Order; and (y) Client has agreed to pay any additional Search Fee set forth in such Change Order.
(b) Any amendments or adjustments to this Agreement shall be set forth in a written Change Order executed by an authorized representative of each Party. If the Parties are unable to agree to any adjustments to the Brief and/or this Agreement that Elevate deems necessary in order to continue its provision of the Services, then Elevate may terminate this Agreement upon written notice delivered to Client.
3. Candidate Warranty & Replacement Search.
(a) For purposes of this Agreement, the term (i) “Cause” shall mean the Candidate’s gross negligence, willful misconduct or violation of applicable law in connection with the Candidate’s employment in the Position, and/or the Candidate’s material failure to meet the requirements of the Position (as set forth in the Brief), in each case, as reasonably determined by Client and demonstrated to Elevate; (ii) “Good Reason” shall mean the occurrence of any one or more of the following events, circumstances or occurrences that precedes a Qualifying Candidate Departure: (1) a material change to the applicable Position, including the level of seniority, reporting line, direct supervisor, Annual Compensation, department, location, or job description, or (2) a material change to Client, including without, limitation, an organizational and/or department reorganization, realignment or, a Change of Control of Client; and (iii) “Change of Control” shall mean the occurrence of any of the following events: (A) an acquisition of Client by another person or entity by means of any transaction or series of related transactions (including, without limitation, any equity purchase, reorganization, merger or consolidation), or (B) a sale of all or substantially all of the assets of Client, so long as in the case of clause (A), the holders of Client’s equity of record immediately prior to such transaction or series of related transactions will, immediately after such transaction or series of related transactions, hold less than fifty percent (50%) of the voting power of the surviving or acquiring entity.
(b) Elevate’s obligation to conduct a Replacement Search is subject to Client’s full and timely payment of all Search Fees, Expenses and any other amounts due to Elevate pursuant to this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, Client acknowledges and agrees that: (i) Elevate shall not accept, and hereby expressly disclaims, any and all liability with respect to any act or omission of any Candidate identified by Elevate or otherwise included in the Search; (ii) Elevate makes no representation and warranty, express or implied, regarding the suitability of, and cannot and will not guarantee the performance of, any Candidate that is identified or ultimately hired for the Position; and (iii) Elevate’s obligation to conduct a Replacement Search in connection with a Qualifying Candidate Departure will be Client’s sole and exclusive remedy with respect to any termination of a placed Candidate’s employment by Client or the Candidate’s voluntary resignation.
4. Termination; Suspension of Search.
(a) This Agreement and the Search may be terminated as follows:
i. Client may elect to terminate the Search and this Agreement at any time by provision of written notice to Elevate (e-mail sufficing).
ii. Either Party may terminate the Search and this Agreement if the other Party is in material breach of this Agreement and such material breach has not been cured (if curable) within fifteen (15) days of receipt of written notice from the non-breaching Party specifying said breach.
iii. Either Party may terminate the Search and this Agreement upon written notice to the other Party in the event such other Party: (A) makes an assignment for the benefit of creditors; (B) is unable to pay its debts as such debts become due; (C) makes any voluntary filing for bankruptcy protection; or (D) becomes the subject to any involuntary bankruptcy proceedings, which proceedings are not dismissed within thirty (30) days.
(b) Without limiting the foregoing, Client may, on a one-time basis during the Term and upon no less than five (5) business days written notice delivered to Elevate (e-mail sufficing), elect to suspend the Search for a period of up to sixty (60) consecutive days (a “Suspension”), during which time Elevate shall cease provision of the Services under this Agreement and Client shall be obligated to pay all invoiced but unpaid portions of the Search Fee as of the effective date of Suspension. During the continuance of any Suspension, Client will not be obligated to pay any amounts in respect of the Search Fee that would have been invoiced and become due and payable but for the Suspension. To the extent Client re-initiates the Search within sixty (60) days following the initiation of a Suspension by provision of written notice delivered by Client to Elevate (e-mail sufficing): (i) any amounts in respect of the Search Fee that would have been invoiced and become due and payable to Elevate but for the initiation of the Suspension shall be accelerated so as to be deemed immediately due and payable; and (ii) Elevate shall only re-initiate the Search and its provision of Services upon receipt of payment from Client of all amounts described in the preceding clause (i), as well as any Expenses incurred prior to the initiation of the Suspension. Notwithstanding the foregoing, if (i) a Suspension continues for more than sixty (60) consecutive days without written notice delivered from Client to Elevate (e-mail sufficing) to re-initiate the Search, or (ii) during the period of a Suspension, Client delivers notice to Elevate of its intention to terminate the Search and this Agreement prior to expiration of the Suspension, then in either case, the Search and this Agreement shall be deemed terminated by Client.
(c) In the event this Agreement is terminated by either Party in accordance with this Section 4, (i) Elevate shall be entitled to keep all amounts previously paid by Client in respect of the Search Fee, Expenses or any other amounts payable to Elevate hereunder as of the effective date of termination, without any refund or offset to Client of any kind, and (ii) all invoiced but unpaid Search Fees as of the effective date of termination shall be accelerated so as to be deemed immediately due and payable as of the effective date of termination. Notwithstanding anything to the contrary in this Agreement, Elevate shall remain entitled to payment of any outstanding amounts due in respect of the Search Fee for a hire made during the Tail Period and any Supplemental Fee earned in accordance with the terms of this Agreement. Client’s obligations to pay the Search Fee, Expenses or any other amounts payable to Elevate that have accrued as of the effective date of termination of this Agreement shall survive the termination or expiration of this Agreement for any reason.
5. Confidentiality.
(a) During the Term, each Party hereto (in this context, “Recipient”) may have access to or become acquainted with the other Party’s proprietary information, various trade secrets and confidential information (in this context, “Discloser”), including plans, policies, management guidelines and procedures, financial information, operating manuals, and similar compilations and documents prepared for, or used in the operation of, the business of Client or Elevate, respectively (“Confidential Information”). Notwithstanding the foregoing, the term “Confidential Information” shall not be deemed to include information which (i) is or becomes publicly available by means other than a breach hereof (including, without limitation, any information filed with any governmental agency and available to the public); (ii) is known to, or rightfully in the possession of, Recipient at the time of disclosure by Discloser without breach or violation of this Section 5; (iii) following disclosure by Discloser, becomes known to or comes into the possession of Recipient from a third party that is lawfully in possession of and not prohibited from disclosing such information pursuant to an obligation of confidentiality or non-disclosure; or (iv) is developed by Recipient independently without use of or reference to any Confidential Information previously disclosed by or on behalf of Discloser.
(b) During and after the Term, Recipient shall not, directly or indirectly, disclose to any third party any Confidential Information of Discloser without Discloser’s prior written consent, other than to (i) one or more Candidates, as is reasonably required in connection with the Search and Elevate’s provision of Services, and (ii) any of Recipient’s Representatives (defined below) who have a need to know such information in connection with this Agreement and Recipient’s duties and obligations hereunder. “Representatives” shall mean a Party’s Affiliates, directors, officers, principals, shareholders, members, partners, managers, employees, agents, representatives, associates, attorneys, accountants, lenders, advisors or subcontractors.
(c) Notwithstanding the foregoing, if Recipient is required to disclose any Confidential Information of Discloser by the order, or the process, of a court of competent jurisdiction, an administrative or regulatory agency or a governmental body having jurisdiction over Recipient, or by subpoena, summons or other legal process, Recipient may disclose such information to the extent required; provided, that (i) if legally permissible, Recipient notifies Discloser of such order, process, subpoena or other legal requirement promptly so as to allow Discloser an opportunity to object to such disclosure and/or seek protective remedies or other confidential treatment of such Confidential Information, and (ii) to the extent disclosure of all or any portion of such Confidential Information is still required to be disclosed following any actions taken by Discloser pursuant to clause (i) of this sentence, any such disclosure is limited to solely that portion of the Confidential Information that is required to be disclosed, as advised in writing by Recipient’s counsel.
(d) Discloser’s Confidential Information may only be used by Recipient and its Representatives in connection with the Search and the Services. Such information cannot be used in any other manner whatsoever by Recipient, its Representatives or any other person or entity at any other event associated with Recipient or by any other entities owned, managed or affiliated with Recipient or its Representatives, except as otherwise specifically provided in this Agreement.
(e) Without limitation to the foregoing, Client hereby acknowledges the sensitive and confidential nature of the Search and each Candidate’s participation therein. As such, Candidate details provided by Elevate may not be provided or disclosed to a third party, absent prior written consent of Elevate and the applicable Candidate. Client hereby further agrees (i) not to engage in any direct or indirect referencing of Candidates outside of the Search process directed by Elevate and (ii) to carefully protect the distribution of Candidate-identifying materials, such as biographical information, resumes, CVs, and reference lists, and to inform Client’s personnel participating in the Search process of the confidentiality of the Search and any Candidate-identifying information they are provided. Referencing or unauthorized disclosure of a Candidate-identifying information in violation of this Section 5(e) will be deemed a material breach of this Agreement by Client.
6. License to Client Content; No Other Rights.
(a) Client hereby grants, and/or shall procure the right to grant to Elevate, a non-exclusive, worldwide, non-transferable license to use the Client Content to the extent required in connection with the Search and Elevate’s provision of the Services, or as otherwise reasonably required in connection with Elevate’s exercise and discharge of its rights and obligations under this Agreement.
(b) For the purposes of this Agreement, the term (i) “Client Content” shall mean all Marks, materials, information, photography, writings, designs, film or video content, multimedia or audio content, or other creative content that is made publicly available by Client or is otherwise provided to Elevate by the Client in connection with the Search, Elevate’s provision of the Services or otherwise pursuant to this Agreement; and (ii) “Marks” shall mean 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.
(c) 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.
7. Representations and Warranties.
(a) 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; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder (including the license to the Client Content provided by Section 6 above), and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth herein has been duly authorized by all necessary corporate action of the Party; and (iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) CLIENT ACKNOWLEDGES AND AGREES THAT, OTHER THAN THE REPRESENTATIONS AND WARRANTIES SPECIFICALLY PROVIDED IN THIS SECTION 7, ELEVATE HEREBY SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER RELATED TO ANY CANDIDATE, INTELLECTUAL PROPERTY OR OTHERWISE.
8. Indemnification.
(a) 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 applicable law, (c) willful misconduct, (d) gross negligence, or (e) breach of this Agreement or any representation, warranty or covenant of the Indemnitor contained in this Agreement.
(b) 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: (i) 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 the Search and its provision of the Services; (ii) arising out of or related to any employment-related decisions made by Client with respect the Position, including, by way of example and not limitation, the decision to hire or not to hire a Candidate or to terminate, re-assign or otherwise materially change the terms and conditions of employment for a Candidate placed in the Position; and/or (iii) alleging harassment, discrimination or retaliation and that directly or indirectly involve (including being mentioned in any allegations) an action, omission, direction, or approval by or on behalf of Client, its Affiliates, and its and their respective employees, officers, directors, contractors, or other agents or representatives.
(c) The Indemnitor’s indemnification obligations set forth herein shall apply except to the extent that any such Losses result or Claims arise from the gross negligence or willful misconduct of an Indemnified Party. The Indemnified Party will promptly notify the Indemnitor of any Claim for which it intends to seek indemnification; provided that an Indemnified Party’s failure to give prompt notice shall not relieve the Indemnitor of its indemnification obligations except to the extent that it is actually and materially prejudiced as a result of such failure. The Indemnifying Party will have the right to participate in and, at Indemnitor’s option, to control any defense, compromise, litigation, settlement, or other resolution or disposition of such Claim. With respect to the Indemnified Party, the Indemnitor will, upon request by the Indemnified Party, allow the Indemnified Party, at its own expense, to cooperate in the defense of any such Claim. If the Indemnitor wrongfully fails or refuses to assume the defense of any Claim to which its indemnity obligation applies (whether or not suit has formally been brought), it shall be responsible for payment of any settlement of such Claim reached by the Indemnified Party, as well as the reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnified Party in defending such Claim and/or in reaching such settlement and/or in enforcing this indemnification obligation. The Indemnitor shall not have any right, without the Indemnified Party’s written consent, to settle any Claims if such settlement arises from or is part of (i) any criminal action, suit, or proceeding or contains a stipulation to, or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort, or otherwise) on the part of the Indemnified Party or (ii) arises out of or in any way relates to the Indemnified Party’s intellectual property (including the applicable Party’s Marks or the Client Content).
9. Limitation of Liability.
(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 THIS AGREEMENT OR 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.
(b) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT.
(c) THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, THAT THESE LIMITATIONS SHALL NOT BE DEEMED TO APPLY TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR A BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 5.
10. Publicity & Promotional Efforts.
(a) Elevate and Client agree to mutually commit to reasonable co-marketing and publicity opportunities regarding the Search, Elevate’s provision of the Services, and/or the results thereof. The Parties 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 the Parties’ relationship and the Services provided by Elevate, with the timing, content, verbiage, and channels or outlets for such acknowledgement to be mutually agreed upon by the Parties.
(b) In addition, Client hereby grants Elevate the right, during and following the Term, to utilize Client’s Marks, to list Client in 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).
11. Dispute Resolution.
(a) In the event of any controversies or disputes arising out of or relating to this Agreement (each a “Dispute”), the aggrieved Party shall notify the other Party in writing within five (5) business days of its knowledge of the facts, events or circumstances giving rise to such Dispute. Following receipt of notice of such Dispute, authorized representatives of each Party shall meet and confer in good faith for a period not to exceed fifteen (15) business days in an effort to settle or resolve such Dispute (the “Dispute Resolution Period”). To the extent the initially appointed representatives of each Party are unable to resolve a Dispute during the Dispute Resolution Period, the Parties shall each escalate the matter to their respective Chief Executive Officers or other similarly situated executive management personnel (with respect to each Party, its “Executive”) for further discussion and negotiation. If the Parties’ respective Executives are unable to reach resolution or settlement of any such Dispute within five (5) business days, the matter may be submitted to arbitration by either Party in accordance with this Section 11.
(b) Any Dispute which is not resolved pursuant to Section 11(a) shall be submitted to binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The Parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. 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 location as is 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 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. 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 under this Agreement.
(c) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.
12. Miscellaneous.
(a) 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 in this Agreement shall be deemed to constitute a partnership, joint venture, employment relationship, or agency relationship between the Parties. Without limiting the foregoing, nothing in this Agreement will be deemed to prevent or restrict Elevate or any of its Affiliates from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purpose any knowledge, experience or skills used in, gained or arising from performing the Services subject to the obligations of confidentiality set out in Section 5, even if those other clients’ interests are in competition with Client. Also, to the extent that Elevate possesses information obtained under an obligation of confidentiality to another client or other third party, Elevate is not obliged to disclose it to Client, or use it for the benefit of Client, however relevant it may be to the Search or the Services.
(b) Force Majeure. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (a “Force Majeure Event”), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such Force Majeure Event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such Force Majeure Event. The term “Force Majeure Event” shall include, without limitation, acts of God, fire, explosion, earthquake, vandalism, storm or other similar occurrence, orders or acts of military, governmental, or civil authority, national emergencies, insurrections, riots, wars, strikes, lock-outs, work stoppages or other labor disputes, supplier failures, epidemic or pandemic, and other causes or events beyond a Party’s reasonable control, whether or not similar to those which are enumerated above; provided, however, that financial difficulty alone shall not be considered a Force Majeure Event and shall not relieve either Party of any obligations set forth in this Agreement. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party, or its employees, officers, agents, or Affiliates.
(c) Notices. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered (i) in person, (ii) by nationally recognized overnight courier (with all fees prepaid), (iii) by certified mail, return receipt requested and postage prepaid, or (iv) by e-mail, in each case, to the addresses provided in the Engagement Letter or such other address as a Party provides to the other Party in accordance with this Section 12(c); provided, that any notice delivered by e-mail must also be accompanied by notice delivered in accordance with clauses (i), (ii) or (iii). The notice shall be deemed received (i) if delivered in person, when delivered, (ii) if delivered by overnight courier, on the next business day, (iii) by certified mail, when signed for, or on the third (3rd) day after mailing if not signed for, and (iv) if delivered by e-mail, upon receipt of confirmation of transmission. All notices delivered to Elevate shall include a copy, which shall not constitute notice, delivered to: Elevate Sports Ventures Inc., Attn: Legal Department, 3600 South Blvd., Suite 300, Charlotte, NC 28209; E-mail: Legal@oneelevate.com.
(d) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If an arbitrator or court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
(e) Waiver. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
(f) Assignment. Except as set forth in this Agreement, this Agreement shall not be assignable and the obligations hereunder are not delegable by either Party without the prior written consent of the other Party. Notwithstanding anything to the contrary herein, Elevate may assign this Agreement, and any of its rights under this Agreement, without the prior written consent of Client to (a) an Affiliate of Elevate and/or (b) any surviving or acquiring entity in the event of a Change of Control of Elevate. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.
(g) Survival. Notwithstanding anything to the contrary in this Agreement, all sections and paragraphs of this Agreement which by their nature and terms are intended to survive termination or expiration shall survive and extend beyond any termination or expiration, expressly including any obligation of Client to pay any Search Fee or Supplemental Fee earned, or Expenses incurred, in accordance with this Agreement.
(h) Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
(i) No Third-Party Beneficiaries. Except for the Indemnified Parties, this Agreement shall not be construed to be an agreement for the benefit of any third party or parties, and no other third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
(j) Governing Law. This Agreement shall be governed and construed in accordance with the statutes and laws of the State of Delaware, without regard to its choice or conflicts of law principles.
(k) Party Deemed Drafter. Elevate and Client agree that neither shall be deemed to be the drafter of this Agreement. In the event that this Agreement is ever construed by an arbitrator or a court of law, such arbitrator or court shall deem neither Party to be the drafter of this Agreement.
(l) Captions. The captions of the various sections, paragraphs, and subparagraphs of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
(m) Counterparts. The Parties may execute this Agreement in any number of counterparts and all such counterparts shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission, PDF, or by electronic mail transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Each Party agrees that the electronic signatures of the Parties, in any form or format, included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. For the purposes of this provision, “electronic signature” means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including e-mail signatures and processes developed by electronic signature services (e.g., DocuSign or Adobe Sign).
