This Master Software License and Services Agreement (this “Agreement”) is entered into as of the Effective Date of the respective Order Form (the “Effective Date”) by and between Customer and Elevate.
WHEREAS, Elevate has developed a proprietary computer software platform referred to as the “Elevate Performance & Insights Cloud” or “EPIC” (the “Platform”);
WHEREAS, Customer desires to access certain offerings, applications and functionality within the Platform, and Elevate desires to provide Customer access to such offerings, applications and functionality subject to the terms and conditions set forth in this Agreement; and
WHEREAS, Customer desires for Elevate to provide certain services to Customer in connection with and in furtherance of Customer’s use and access of the Platform, and Elevate desires to provide such services to Customer subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
(a) “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Platform.
(b) "Affiliate" of a Person means an entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and the term “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.
(c) “Authorized User” means an employee of Customer that has been assigned Access Credentials to access and use the Platform and the Software.
(d) “Customer” means the individual, entity or other customer set forth in the applicable Order Form to whom Elevate is providing the Services.
(e) “Customer Content” means the Customer Data, Customer Trademarks and any and all other images, descriptions, text, videos, and other content and information that Customer provides or otherwise makes available to Elevate in connection with its provision of the Services.
(f) “Customer Data" means information, data, and other content, in any form or medium, that is stored, hosted, uploaded, or otherwise provided or received, directly or indirectly, from or on behalf of Customer or an Authorized User in connection with their use of the Services.
(g) “Customer Systems" means Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
(h) “Customer Trademarks” 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 Customer.
(i) “Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Elevate or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Elevate or its designee.
(j) "Documentation" means any manuals, instructions, or other documents or materials that Elevate provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Elevate Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
(k) “Elevate Materials” means the Services, the Documentation, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Elevate in connection with the Services or otherwise comprise or relate to the Services or the Elevate Systems.
(l) “Elevate Systems" means the information technology infrastructure used by or on behalf of Elevate in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Elevate or through the use of third-party services.
(m) “Fees” means the fees payable to Elevate by Customer as set forth in one or more Order Forms.
(n) “Intellectual Property Rights” means the rights associated with the following: (i) all United States and foreign patents and applications therefor; (ii) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world; (iii) trademarks, service marks, trade dress rights and similar designation of origin and rights therein; (iv) trade secrets, know-how, and Confidential Information; and (v) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.
(o) “Losses” means any and all judgments, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses).
(p) “Order Form” means the form which references and incorporates this Agreement and that identifies the relevant Services to be provided by Elevate to Customer, along with associated pricing and relevant commercial terms.
(q) “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
(r) “Services” means the Platform, the Software, and any accompanying services to be provided by Elevate under this Agreement, as set forth in one or more Order Forms.
(s) “Software” means the then-current version (inclusive of any Updates, Upgrades or modifications thereto) of those computer program modules and accompanying graphical user interfaces available solely through the Platform, as described herein and in the Documentation including, by way of example and not limitation, the Team Insights Application, the Consumer Insights Application, the Ticketing Management Application, and the Property Insights Application.
(t) “Third-Party Technology and Services” means any and all third party hardware, software, technology and services that interface, integrate with, or otherwise interact with the Platform, including but not limited to any third-party data sources which provide access to Customer Data to the Platform and Elevate in connection with the Services.
(u) “Updates” means any updates, patches, bug fixes, feature fixes and minor software enhancements and compatibility (but excluding Upgrades) of the Software that Elevate releases commercially, as determined by Elevate in its sole discretion.
(v) “Upgrades” means a new version of the Software that offers a significant change or major improvement over the current version of the Software, as determined by Elevate in its sole discretion.
2. ACCESS & USE; INTELLECTUAL PROPERTY RIGHTS; FEEDBACK.
2.1 Access & Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement (including timely payment of all Fees), Elevate hereby grants Customer a limited, non-exclusive, non-transferable non-sublicensable right to access and use the Platform and the Software during the Term, solely for Customer's internal business purposes.
2.2 Authorized Users. The Platform and the Software may be utilized solely by Customer’s Authorized Users. Elevate shall provide Customer Access Credentials for each of its Authorized Users within a reasonable time following the Effective Date, or thereafter during the Term upon the written request (e-mail sufficing) of Customer. Customer will ensure that its Authorized Users keep their Access Credentials reasonably secure at all times and comply with the terms of this Agreement and will be fully responsible for any breach of this Agreement by an Authorized User. Customer agrees to notify Elevate immediately of any actual or suspected unauthorized use of the Platform or Software by an Authorized User or otherwise, or any other breach or suspected breach of this Agreement by an Authorized User.
2.3 Intellectual Property Rights.
(a) Title to and ownership of the Elevate Materials, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials and any modifications and improvements made thereto, and all Intellectual Property Rights in and to any of the foregoing, will, at all times and for all purposes, remain with Elevate and its suppliers and licensors. Elevate does not transfer any ownership in or to the Elevate Materials, or any other technology, content, or other materials, or any Intellectual Property Rights in the foregoing to Customer by virtue of this Agreement or otherwise. Elevate hereby expressly reserves all right, title and interest in and to the Elevate Materials and any associated Intellectual Property Rights not expressly granted to the Customer under this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Software and all copies thereof, is licensed pursuant to the terms herein and is not sold or otherwise transferred to Customer. Elevate and/or its suppliers retain all title and ownership rights in the Software, all copies thereof, and all Elevate Materials.
2.4 Feedback. If Customer or any of its Authorized Users or other employees or contractors sends or transmits any comments, suggestions, improvements, or any other feedback regarding the Elevate Materials to Elevate, including, without limitation, new features or functionality relating thereto ("Feedback"), Elevate is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Elevate on Customer's behalf, and on behalf of its Authorized Users, employees, contractors and/or agents, all right, title, and interest in, and Elevate is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever; provided, however, that the decision as to whether to use or incorporate any Feedback will be made in Elevate’s sole discretion and Elevate is not required to use or incorporate any Feedback. For the avoidance of doubt, Customer will have no obligation to provide Feedback to Elevate.
2.5 Suspension or Termination of Services. Notwithstanding anything to the contrary in this Agreement, Elevate may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Elevate receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Elevate to do so; (b) Elevate determines, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, including any violation of the restrictions on use set forth in Section 3.3, or otherwise accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; (iii) Customer's or any Authorized User's use of the Services disrupts or poses a security risk to the Platform, the Software or any other customer’s use of the Platform or Software; or (iv) Elevate’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (c) Customer has failed to pay any Fees or other amounts due to Elevate in connection with the Services in accordance with the payment terms set forth in the applicable Order Form and Section 6 of this Agreement; or (d) this Agreement expires or is terminated in accordance with its terms. For the avoidance of doubt, this Section 2.5 does not limit any of Elevate’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.6 Other Services. To the extent Elevate agrees to provide Services to Customer in addition to access to the Platform and the Software, any such Services are provided by Elevate “as-is” and without representation or warranty of any kind, express or implied.
3. Customer Obligations & Restrictions.
3.1 Customer Deliverables. Customer understands that Elevate’s provision of the Services and performance of certain other obligations hereunder are dependent in part on Customer’s performance in a timely manner of the obligations and dependencies assigned to Customer in any applicable Order Form, including, by way of example and not limitation, Customer’s direct provision of access to Customer Data to Elevate via one or more connections to the Platform and/or facilitation of introductions to providers of Third-Party Technology and Services necessary to establish access to Customer Data relevant to Elevate’s performance of the Services (the “Customer Deliverables”). Accordingly, Customer will be responsible for and assumes the risk of any problems arising from the Customer Deliverables, and Elevate shall have no responsibility or liability to Customer for any failure to provide the Services to the extent such failures arise directly out of a failure by Customer to provide the Customer Deliverables in a complete and timely fashion.
3.2 Customer Technology. Unless otherwise expressly set forth in an Order Form, as between Customer and Elevate, Customer is responsible for obtaining, maintaining, and supporting all internet access, connectivity to the Platform (Wi-Fi, Ethernet, and/or DAS), any Customer Systems or Third-Party Technology and Services required in connection with the Services, and any other computer hardware, software, and other equipment and technology needed for Customer to access the Platform and receive the Services (collectively, the “Customer Technology”). Customer shall be solely responsible for acquiring and maintaining all Customer Technology including, without limitation, any and all costs, fees, expenses and taxes of any kind related to the foregoing.
3.3 Restrictions on Use. Customer shall not, and shall not permit any other Person to, access or use the Elevate Materials except as expressly permitted by this Agreement. Without limiting the foregoing, Customer hereby agrees and covenants that it shall not, and shall not permit any other Person to, directly or indirectly: (i) sell, rent, lease, sublicense, distribute or otherwise transfer the Elevate Materials or any portion thereof; (ii) except as expressly permitted in this Agreement, use, copy, display, or perform the Elevate Materials or any portion thereof; (iii) modify, translate or create derivative works or improvements based on the Elevate Materials or any portion thereof; (iv) except as expressly permitted in this Agreement, make the Elevate Materials or any portion thereof available in any manner to any third party for use in the third party’s business operations or to provide hosting, service bureau, time-sharing, software as a service, cloud, or other similar technology or services to a third party; (v) bypass, breach, disable or circumvent any security device, access control or related device, process or procedure established with respect to the Elevate Materials; (vi) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Elevate Materials, in whole or in part; (vii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Elevate Systems, or Elevate’s provision of services to any third party, in whole or in part; (viii) use the Elevate Materials for any purpose that is unlawful or that violates or is inconsistent with applicable laws or regulations; (ix) access or use the Elevate Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Elevate customer); (x) access or use the Elevate Materials for purposes of competitive analysis of the Elevate Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Elevate’s detriment or commercial disadvantage; or (xi) access or use the Elevate Materials for any purpose other than as explicitly authorized herein.
4. Support & Maintenance
4.1 Maintenance & Tech Support. During the Term, Elevate will provide the maintenance and support services set forth in Exhibit A to this Agreement (the “Maintenance and Tech Support”). Customer understands that Elevate’s provision of Maintenance & Tech Support is dependent in part on the Customer’s performance in a timely manner of the obligations and dependencies in Exhibit A assigned to Customer or any Authorized User (the “Customer Maintenance Assistance”). Elevate’s Maintenance & Tech Support obligations will be subject to performance of the Customer Maintenance Assistance in a manner that allows Elevate to provide its Maintenance & Tech Support obligations.
4.2 Updates & Upgrades. During the Term, Elevate will notify Customer of any Updates and Upgrades. Elevate will provide Customer with Updates without additional Fees and will provide Upgrades, with or without additional Fees as determined by Elevate in its sole discretion. To the extent there are any Fees associated with an Upgrade, the Parties will enter into a written amendment setting forth the pricing and description of the applicable Upgrade. The Platform and/or the Software may be updated automatically once a new Update or Upgrade is available. Updates and Upgrades will become part of the Platform and/or the Software and will be subject to the provisions of this Agreement.
5. Content & Data
5.1 Customer Content. Customer hereby grants to Elevate a limited, non-exclusive, license during the Term to use, copy, publicly display, publicly perform, and distribute the Customer Content and any portion thereof for the purpose of providing the Services hereunder.
5.2 Customer Data.
(a) Customer reserves any and all right, title and interest in and to all Customer Data, other than the foregoing licenses expressly granted to Elevate under this Agreement. Elevate will have the right, and Customer hereby grants Elevate a worldwide, irrevocable, royalty-free license, to: (i) use and share the Customer Data to provide the Services, (ii) aggregate, combine, incorporate or otherwise utilize Customer Data in connection with the creation of benchmarking reports for provision to Customer, other customers of Elevate, or for general publication, provided that any use of Customer Data will be aggregated such that (A) no underlying Customer Data is expressly communicated or presented in such report and (B) the underlying Customer Data cannot reasonably be linked or otherwise tied back to Customer ((A) and (B) collectively, the “Customer Data Usage Restrictions”), (iii) share Customer Data with other internal divisions of Elevate or its Affiliates in connection with the provision of services to Elevate’s or its Affiliates’ other customers, subject to the Customer Data Usage Restrictions, and (iv) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, training machine learning models, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and otherwise improving Elevate’s products and services.
(b) Customer represents and warrants that it has complied with all applicable data protection laws and will obtain, all right, title, and interest in and to any Customer Data provided hereunder which may be necessary for Elevate to process such Customer Data for the purposes set forth herein. Where applicable and upon request of Elevate, Customer will deliver to Elevate a privacy policy that provides any required notices to individuals whose information is included in the Customer Data and/or otherwise complies with all applicable data protection laws in relation to Elevate’s processing of the Customer Data.
(c) Elevate shall establish and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer Data designed to meet all material requirements of applicable law, including: (i) ensuring the security and confidentiality of the Customer Data; (ii) protecting against any anticipated threats or hazards to the security or integrity of the Customer Data; (iii) protecting against unauthorized access to or modification, destruction, disclosure or use of the Customer Data; and (iv) ensuring the proper disposal of Customer Data.
(d) In the event Elevate becomes aware of any unauthorized use, modification, destruction or disclosure of, or access to, Customer Data (any of the foregoing events or circumstances, a “Security Incident”), Elevate shall promptly notify Customer and shall cooperate with Customer (as reasonably requested by Customer and as required by applicable law), (i) to assess the nature and scope of the Security Incident, (ii) to contain and control the Security Incident to prevent further unauthorized access to or use of Customer Data, and (iii) to provide prompt notice to affected parties to the extent required by applicable law or otherwise with the approval of Customer.
6. Payment
6.1 Fees. Customer will pay to Elevate the Fees, and any other fees or charges described in the Order Form, as set forth in this Section 6.
6.2 Additional Fees. Nothing in this Agreement obligates Elevate to provide any other services, support or development to Customer that is outside the scope of this Agreement. Elevate shall charge additional fees for service, support and/or development provided to Customer that is outside the scope of this Agreement including, but not limited to, software customizations, mobile application development, integrations with third parties, and additional custom reporting.
6.3 Payment Terms
(a) Invoice Schedule. Elevate will send invoices to Customer in accordance with the schedule set forth in the applicable Order Form.
(b) Payment. Unless otherwise set forth in an Order Form, Customer will pay the amount of each invoice within thirty (30) days of receipt of the applicable invoice. Customer shall make all payments in U.S. Dollars unless otherwise specified in the Order Form, and will pay Elevate by wire transfer, ACH or other similar means to an account or accounts designated by Elevate in writing.
(c) Late Payments. Without prejudice to any other remedies available to Elevate in law or equity: (a) late payments by Customer will be subject to the lesser of one and one-half percent (1.5%) per month, or the highest rate allowed by law, from the original payment due date, after Elevate provides Customer with a fifteen (15) day written notice of nonpayment. Customer shall reimburse Elevate for all reasonable costs incurred by Elevate in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. Without limiting the foregoing, if Customer fails to make any payment by the applicable due date, Elevate may suspend provision of the Services in accordance with Section 2.5.
(d) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer 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 Customer hereunder, other than any taxes imposed on Elevate’s income.
(e) No Deductions or Setoffs. All amounts payable to Elevate under this Agreement shall be paid by Customer to Elevate in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other any deduction or withholding of tax as may be required by applicable law).
(f) Increase in Fees. Elevate may increase Fees for the first year of any Renewal Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of such Renewal Term.
7. Term and Termination
7.1 Term. The initial term of this Agreement will commence on the Effective Date set forth in any applicable Order Form and will continue in full force and effect for the period stated in the applicable Order Form, unless earlier terminated pursuant to the terms of this Agreement (the “Initial Term”). Unless otherwise set forth in the applicable Order Form, this Agreement and the applicable Order Form shall automatically renew for successive, dependent 12-month periods (each such 12-month period, a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless either Party gives written notice of non-renewal no less than thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term.
7.2 Termination. In addition to any other express termination rights set forth elsewhere in this Agreement:
(a) Termination for Non-Payment and Violations of Restrictions on Use. Elevate may terminate this Agreement, effective immediately upon delivery of written notice to Customer, if Customer: (i) fails to pay any amounts when due hereunder, and such failure continues more than ten (10) business days after Elevate’s delivery to Customer of written notice of non-payment; or (ii) breaches any of its obligations under Section 2.2 or 3.3.
(b) Termination for Breach. Subject to Section 7.2(a), either Party may terminate this Agreement, effective upon written notice to the other Party and without prejudice to any other rights or remedies available to the non-breaching Party at law or in equity, if the other Party materially breaches any term of this Agreement and such breach (i) is incurable, or (ii) if capable of cure, remains uncured for a period of thirty (30) days following receipt by the breaching Party of written notice of such breach from the non-breaching Party.
(c) Termination for Financial Reasons. Either Party may terminate this Agreement in the event the other Party: (i) seeks the liquidation, reorganization, dissolution or winding up of itself or the composition or readjustment of all or substantially all of its debts; (ii) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or substantially all of its assets; (iii) makes a general assignment for the benefit of its creditors; (iv) commences or has commenced against it a case under the U.S. bankruptcy code; or (v) files a petition for relief or otherwise seeks relief from or readjustment of its debts under any other law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts (including, without limitation, consenting to the entry of an order for relief in an involuntary bankruptcy case against it).
7.3 Effect of Expiration or Termination; Survival.
(a) Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement: (i) all then-effective Order Forms shall automatically expire or terminate concurrently with the termination of this Agreement, (ii) Customer shall immediately cease use of any Services or Elevate Materials and Elevate may disable (including through the use of a Disabling Device) Customer’s and any Authorized User’s access to the Services or the Elevate Materials, (iii) all licenses and other rights granted by Elevate to Customer hereunder shall immediately terminate, (iv) all payment obligations of Customer that have accrued as of the effective date of expiration or termination (including any Fees which have been invoiced as of the effective date of expiration or termination and any Expenses incurred up to and including the effective date of expiration or termination) will survive indefinitely, and (v) if this Agreement is terminated by Elevate, all Fees that would have become due and payable had this Agreement remained in effect until expiration of the Term shall be accelerated so as to become immediately due and payable, and Customer shall pay such Fees, together with all accrued payment obligations described in clause (iv), upon receipt of an invoice therefor.
(b) Survival. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 2.3, 2.4, 2.6, 3.3, 5.2, 7.3, 8, 10, 11, and 12.
8. Confidentiality.
8.1 Definition. “Confidential Information” means any and all technical or business information disclosed by one Party to the other Party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. The terms and conditions of this Agreement shall be deemed to be the Confidential Information of Elevate.
8.2 Exclusions. Information will not be Confidential Information if such information, as the receiving Party can demonstrate: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one that has an obligation of confidentiality with respect to such information; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one that has an obligation of confidentiality with respect to such information; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use or access to the disclosing Party’s Confidential Information. The provisions of this Section 8 will not restrict a Party from disclosing the other Party’s Confidential Information to the extent required by any law or regulation; provided that the Party required to make such a disclosure uses reasonable efforts to give the other Party reasonable advance notice of such required disclosure in order to enable the other Party to prevent or limit such disclosure.
8.3 Restrictions & Obligations. Neither Party shall use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party any of the other Party’s Confidential Information. Each Party shall take precautions to protect the confidentiality of such information that are no less protective than the precautions it takes to protect its own confidential information of like nature and importance, but in any event, no less than reasonable measures. Each Party may disclose the Confidential Information of the other Party to its Affiliates, and its and their respective, directors, officers, employees, consultants, contractors, legal or financial advisors and other agents (“Representatives”), in each case, who (a) have a bona fide need to know such Confidential Information, but solely to the extent necessary to perform the obligations or exercise the rights granted herein for no other purpose and (b) are bound by obligations of confidentiality and non-disclosure with respect to such Confidential Information received from the receiving Party (whether by contract or legal, ethical or fiduciary duty) which are no less restrictive than the provisions of this Section 8. Each Party will be liable for the conduct of its Representatives to the same extent as if such Party had directly engaged in such conduct.
9. Representations & Warranties
9.1 Warranties.
(a) By Elevate. Elevate represents and warrants to the Customer that: (i) it is authorized to enter into this Agreement; (ii) the execution and performance of this Agreement will not conflict with or result in a material breach of the terms of any other agreement to which it is a party; (iii) it will comply with all United States laws and regulations applicable to Elevate in the performance of its obligations hereunder, including but not limited to all United States federal, state and local laws and regulations; and (iv) to the best of Elevate’s knowledge, the Services do not and will not infringe, misappropriate, or violate the Intellectual Property Rights of any third party.
(b) By the Customer. The Customer represents and warrants that: (i) it is authorized to enter into this Agreement; (ii) the execution and performance of this Agreement will not conflict with or result in a material breach of the terms of any other agreement to which it is a party; (iii) it will comply with all laws and regulations applicable to the Customer in the performance of its obligations and exercise of its rights hereunder, including but not limited to all federal, state and local laws and regulations; and (iv) the Customer Content will not infringe, misappropriate, or violate the rights of any third party, including without limitation Intellectual Property Rights, rights of publicity, and rights of privacy.
9.2 Disclaimer. THE WARRANTIES SET FORTH IN SECTION 9.1 ARE IN LIEU OF, AND EACH PARTY HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARISING OUT OF THIS AGREEMENT. EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ELEVATE OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED IN SECTION 9.1, ALL SERVICES AND ELEVATE MATERIALS ARE PROVIDED BY ELEVATE “AS-IS”, AND ELEVATE DOES NOT WARRANT THAT THE SERVICES AND ELEVATE MATERIALS WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, WILL BE UNINTERRUPTED, WILL ACHIEVE ANY INTENDED RESULT, WILL BE COMPATIBLE WITH ANY CUSTOMER SYSETMS OR THIRD-PARTY TECHNOLOGY AND SERVICES, WILL BE ERROR-FREE, OR BE COMPLETELY SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE. ELEVATE MAKES NO REPRESENTATIONS OR WARRANTIES AND WILL HAVE NO, AND HEREBY DISCLAIMS, ANY OBLIGATION HEREUNDER OR LIABILITY ARISING FROM OR CAUSED BY ANY THIRD-PARTY TECHNOLOGY AND SERVICES.
10. Indemnification.
10.1 Indemnification by Elevate. Elevate will defend, indemnify, and hold harmless Customer, its Affiliates, and its and their respective directors, officers, employees, agents, successors and assigns (each, a “Customer Indemnified Party”) from and against any Losses arising out of any claim, demand, action or proceeding initiated by a third party that alleges that Customer’s use of the Services in accordance with the terms of this Agreement infringes or misappropriates such third party’s US Intellectual Property Rights. Customer shall notify Elevate promptly in writing of any such claim and shall give Elevate full control, authority, information, and assistance (at the expense of Elevate) in settling and/or defending such claim; provided that Elevate will not settle or compromise any such claim or consent to the entry of any judgment regarding which indemnification is being sought by a Customer Indemnified Party in accordance with this Section 10.1, unless such settlement, compromise or consent (a) includes an unconditional release of the Customer Indemnified Party from all liability arising out of such claim; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Customer Indemnified Party; and (c) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of the Customer Indemnified Party. Elevate shall have no liability whatsoever with respect to any claims settled by a Customer Indemnified Party without Elevate’s prior written consent.
10.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Elevate, its Affiliates, and its and their respective directors, officers, employees, agents, successors and assigns (each, an “Elevate Indemnified Party”) from and against any Losses arising out of any claim, demand, action, or proceeding initiated by a third party which arise out of or results from (or which are alleged to have arisen out of or resulted from): (i) a breach by a Customer of the warranties set forth in Section 9.1(b); (ii) negligent acts or omissions or willful misconduct of the Customer, any Authorized Users, or Customer’s employees or contractors relating to this Agreement; (iii) the Customer Content; and (iv) any breach or violation of Sections 2.2 or 3.3. Elevate shall notify Customer promptly in writing of any such claim and shall give Customer full control, authority, information, and assistance (at the expense of Customer) in settling and/or defending such claim; provided that Customer will not settle or compromise any such claim or consent to the entry of any judgment regarding which indemnification is being sought by an Elevate Indemnified Party in accordance with this Section 10.2, unless such settlement, compromise or consent (a) includes an unconditional release of the Elevate Indemnified Party from all liability arising out of such claim; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Elevate Indemnified Party; and (c) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of the Elevate Indemnified Party. Customer shall have no liability whatsoever with respect to any claims settled by an Elevate Indemnified Party without Customer’s prior written consent.
10.3 Elevate Indemnity Carve-outs. Elevate shall have no obligation under Section 10.1 if and to the extent that such claim arises from or relates to: (a) Third-Party Technology and Services or Customer Data, (b) Customer’s or any Authorized User’s access to or use of the Services (i) in combination with any hardware, system, software, network or other materials or services not supplied or provided by Elevate (unless expressly approved in writing by Elevate), (ii) following modifications (A) made in whole or in part by Elevate in accordance with requests from Customer or Customer’s specifications, or (B) made by or on behalf of any person other than Elevate (unless expressly approved in writing by Elevate), (c) Customer’s failure to implement any (i) Updates or Upgrades, or (ii) patches, replacements, enhancements or other modifications which Elevate notifies to Customer in writing (e-mail sufficing) and requests Customer implement in order to avoid any alleged misappropriation or infringement, or (d) Customer’s or any Authorized User’s use of the Services or Elevate Materials other than in accordance with this Agreement.
10.4 Infringement Remedies. In the event that the Services are held by a court to, or in Elevate’s opinion are likely to, misappropriate or infringe any third party’s US Intellectual Property Rights, Elevate shall have the option, at its sole cost and expense to: (a) modify or replace the Services, in whole or in part, to seek to make to the Services non-infringing while providing materially similar features and functionality; (b) obtain the right for Customer to continue using the Services as contemplated by this Agreement; or (c) upon written notice to Customer, terminate this Agreement with respect to all or any part of the Services, require Customer to immediately cease any use of the Services and the Elevate Materials, and refund a pro-rata portion of the Fees actually paid by Customer based on the number of months of the Term that have transpired from the Effective Date as of the effective date of termination. THIS SECTION 10.4 STATES THE ENTIRE LIABILITY AND OBLIGATION OF ELEVATE AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH CUSTOMER’S ACCESS TO OR USE OF THE SERVICES.
11. Limitation of Liability. EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTIONS 2.2 AND 3.3, (B) EITHER PARTY’S BREACH OF SECTION 8, AND (C) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTION 10 OF THIS AGREEMENT: (I) IN NO EVENT WILL THE PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ELEVATE’S PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: AND (II) ELEVATE’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE GREATER OF (X) THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO ELEVATE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, AND (Y) $10,000. 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.
12. Miscellaneous.
12.1 Marketing and Publicity. Customer and Elevate agree to mutually commit to reasonable co-marketing and publicity opportunities regarding 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 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), with such acknowledgement to be made no more than thirty (30) days following the Effective Date, unless otherwise mutually agreed upon by the Parties; provided, that the verbiage and content of such acknowledgement must be mutually agreed upon by the Parties. Notwithstanding the foregoing, neither Party will issue any press release or publication or engage in any other publicity efforts related to the other Party, written or oral, without having express prior written approval from the other Party. In addition, Customer hereby grants to Elevate the right to list Customer 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).
12.2 Assignment. The Parties hereby expressly bind themselves and their permitted successors and assigns to all covenants of this Agreement. Except as otherwise expressly set forth in this Agreement, neither Party shall have the right to transfer or assign this Agreement, or any of its rights, interests and obligations under this Agreement, to any other Person without the express written consent of the other Party, which may be withheld at the other Party’s sole and absolute discretion. Notwithstanding the foregoing, Elevate may assign this Agreement, and any of its rights under this Agreement, without the prior written consent of Customer to (a) an Affiliate of Elevate and (b) any surviving or acquiring entity in the event of a Change of Control of Elevate. The term “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of a Party 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 but excluding any merger effected exclusively for the purpose of changing the domicile of such Party), or (ii) a sale of all or substantially all of the assets of a Party, so long as in the case of clause (i), the holders of such Party’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. Without limiting the foregoing, this Agreement shall be binding on Customer’s assignees or transferees, including any recipient of substantially all of Customer’s assets, at Elevate’s discretion. By way of example, if there is a Change of Control transaction between Customer and a third party whereby the third party takes ownership of Customer, at Elevate’s discretion, such third party shall be bound to the provisions in this Agreement.
12.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The Parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the Parties hereby irrevocably consent to the personal jurisdiction and venue therein.
12.4 Equitable Relief. Notwithstanding Section 12.3, either Party may commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction or other equitable relief for protection of its Intellectual Property Rights or Confidential Information, or, in the case of Elevate, to enforce the restrictions on use set forth in Section 3.3. Each Party acknowledges that the unauthorized use or disclosure of the other Party’s Confidential Information or Intellectual Property Rights, or in the case of Customer, a breach or violation of Section 3.3, would cause the other Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain, and that the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
12.5 Relationship. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture between the Parties. No Party hereto (nor any agent or employee of such Party) will make any representations or warranties or incur any obligation on behalf of the other.
12.6 Force Majeure. If performance of this Agreement or any obligation under this Agreement (including Customer’s access to or use of the Platform, Software or Services) 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 and for the period of time necessary as a result of 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 herein. 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.
12.7 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If a 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. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
12.8 Waiver. No delay or omission by a Party hereto to exercise any right occurring upon any noncompliance or default by another Party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by one of the Parties hereto of any of the covenants, conditions or agreements to be performed by one of the other Parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition or agreement contained herein.
12.9 Notices. Any notices to be provided hereunder will be deemed delivered: (i) five (5) calendar days after deposit in certified or registered mail; (ii) three (3) calendar days after deposit with a national overnight courier or one (1) business day after confirmation of delivery by such courier; or (iii) upon delivery if delivered in person or by messenger, in each case, addressed to the following addresses (or such other address as any Party may be notified of as described above):
If to Elevate:
Elevate Sports Ventures Inc.
1 Pennsylvania Plaza, Suite 4420
New York, NY 10119
Attn: Jim Caruso
With a copy to:
Elevate Sports Ventures Inc.
3600 South Blvd., Suite 300
Charlotte, NC 282209
Attention: Legal Department
If to Customer:
As provided in the Order Form
12.10 Entire Agreement. The Exhibits/Schedules attached hereto are incorporated herein by this reference. This Agreement (including all Exhibits attached hereto) and corresponding Order Form set forth the complete, exclusive and final statement of the agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the Parties regarding such subject matter. Elevate hereby rejects any terms or conditions in any other Customer communication that conflicts with or that purports to add to or modify this Agreement and the respective Order Form. Further, if any conflict exists between the terms of this Agreement, and the Order Form, the terms of the Order Form shall control. This Agreement may be amended, modified or updated by Elevate, from time to time upon written notice to Customer. Except as otherwise provided by law, Customer’s continued access to or use of the Services after any amendments, modifications or updates to the terms and conditions of the Agreement, indicates Customer’s acceptance of such amended, modified or updated terms.
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Exhibit A
Maintenance & Service
1. Definitions.
a. “Available” or “Availability” means the Platform and any applicable Software are available for access and use by Customer and its Authorized Users in material accordance with the Documentation.
b. “Downtime” means any period of time during an applicable Service Period during which the Platform and the Software are not Available, but excluding any Excusable Downtime.
c. “Emergency Maintenance” means any Downtime which is required in connection with Elevate’s identification and/or remediation of a critical flaw, vulnerability or major defect in the Platform or Software, which based on an assessment of the flaw, vulnerability or defect, Elevate determines requires immediate remediation and for which the required notice provided in connection with Scheduled Maintenance cannot reasonably be provided.
d. “Excusable Downtime” means any period of Downtime during the relevant Service Period that is attributable to (i) Force Majeure Events, (ii) Scheduled Maintenance or Emergency Downtime, (iii) failure of Customer Systems or Third-Party Technology and Services that are required in connection with Customer’s access to or use of the Platform and Software, and (iv) any action or omission of Customer or its Authorized Users in violation of this Agreement, including access to or use of the Platform or the Software other than strictly in accordance with the Agreement.
e. “Force Majeure Events” shall have the meaning ascribed to such term in the Agreement.
f. “Scheduled Maintenance” means any scheduled Downtime for which Customer is provided at least twenty-four (24) hours prior written notice from Elevate and which shall not exceed twelve (12) hours in any given Service Period. Elevate shall make commercially reasonable efforts to undertake any Scheduled Maintenance between the hours of 11:00 pm and 5:00 am Eastern Standard Time.
g. “Service Period” means each calendar month of the Term beginning with the first month in which Customer and its Authorized Users are provided access to and use of the Platform.
h. “Third-Party Technology and Services” shall have the meaning ascribed to such term in the Agreement.
2. Uptime Commitment. Subject to the terms and conditions of this Agreement, Elevate shall use commercially reasonable efforts to make the Services Available to Customer for at least 99% of each Service Period during the Term (the “Uptime Commitment”). Availability shall be calculated by subtracting the cumulative minutes of Downtime in a Service Period from the total number of minutes in the applicable Service Period, and dividing the foregoing by the total number of minutes in that Service Period (i.e., (total minutes – cumulative minutes of Downtime) / total minutes). At Customer’s option and expense, Customer may by itself or through a third-party monitor and report on the Platform and Software’s Availability for the purpose of measuring the Uptime Commitment.
3. Response Times for Support Requests. Elevate agrees to respond to support requests received from Customer or its Authorized Users within the stated response time and use commercially reasonable efforts to remediate such situations and underlying issues as set forth below:
Authorized Users should submit support requests to Elevate by sending an e-mail describing the request and providing contact information of the Authorized User reporting the request to the appropriate Elevate support resource identified below, copying their Elevate account manager:
Topic of Support Request/Incident
Consumer Insights App
consumer-support@myepic.ai
Property Insights App
property-support@myepic.ai
Team Insights App
team-support@myepic.ai
Ticketing Management App
ticketing-support@myepic.ai
General Support
epic-support@myepic.ai
THE TERMS AND CONDITIONS OF THIS EXHIBIT A GOVERN THE PROVISION OF MAINTENANCE AND TECH SUPPORT BY ELEVATE AND ARE NOT A PRODUCT WARRANTY.