Last modified: February 8, 2021
This Elevate Master Services Agreement (the “Agreement”) is made between Elevated Data Insights LLC, a Colorado limited liability company (“Elevate”) and each party (a “Customer”) that uses the Services, as defined below. Between Elevate and each Customer the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of Customer’s initial Order Form or the date of Customer’s initial access to the Services, whichever is earlier (the Effective Date). For purposes of this Agreement, “Order Form” means Elevate’s ordering document that specifies the services being provided by Elevate that is signed or electronically accepted by Elevate and Customer. By using the Services, Customer agrees to all the terms set forth below.
NOW THEREFORE, the parties agree as follows:
1.1. Services. Subject to the terms of this Agreement, Elevate will use commercially reasonable efforts to provide to Customer the services identified on each Order Form. As used in this Agreement, the term “Services” includes the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Elevate to Customer.
2.1. Use of Software Underlying Services. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Elevate in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
2.2. Appropriate Use of Services. Customer will not, and will not permit its users to:
(a) Send, store, access, or otherwise transmit any file, scripts, agents, or software code that contains, facilitates, or launches viruses, worms, time bombs, Trojan horses or any other contaminating or destructive features;
(b) Attempt to access any other Elevate systems that are not part of these Services; or
(c) Use the Services to send, store, or access spam, or any unlawful, infringing, obscene or libelous material.
3.1. Confidential Information. Subject to the limitations set forth in Section 3.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be Confidential Information. Confidential Information of Elevate includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all data provided by Customer to Elevate to enable the provision of the Services (“Customer Data”).
3.2. Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
3.3. Nondisclosure. Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
3.4. Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 3.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.
3.5 Processing of Customer Data. Customer grants Elevate the non-exclusive right to access and process the Customer Data for the sole purpose and only to the extent necessary to provide the Services. Elevate agrees not to use, access, disclose, or process any Customer Data, except to: (a) perform the obligations permitted by Customer under this Agreement; and (b) comply with applicable laws.
4.1. What Customer Owns. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing.
4.2. What Elevate Owns. Elevate owns and retains all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any transformation logic, modeling, software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.3. Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of Sections 3 or 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 or 4.
4.4 Usage Data. Notwithstanding anything to the contrary in this Agreement, Elevate may collect and use query logs and any data (other than Customer Data) relating to the operation, support and/or Customer’s use of the Services (“Usage Data”) to develop, improve, support, and operate its products and services. Elevate will not share any Usage Data that includes Customer’s Confidential Information with a third party except in accordance with Section 3 (Confidential Information) or to the extent the Usage Data is aggregated and anonymized.
5.1. Calculation of Fees. Customer will pay Elevate the applicable fees described in each Order Form (the “Fees”). The initial Fees are identified on the initial Order Form. Except as otherwise provided herein all fees are noncancelable and nonrefundable. If Customers use of the Services exceeds the Services capacity set forth on the Order Form(s) or otherwise requires the payment of additional fees (per the terms of this Agreement), Elevate will invoice Customer for such additional usage and Customer agrees to pay the additional Fees in the manner provided herein.
5.2. Payment Terms; Billing. Elevate will bill through an invoice. Elevate may bill Customer (a) for professional services fees incurred during the initial implementation and integration; (b) on a recurring basis for subscription services and user count fees ; and/or (c) for professional services fees performed after the initial integration. Professional services are billed monthly for work performed in the previous month. Subscription and user fees are billed monthly, at the beginning of the month. Except as otherwise provided on an Order Form, full payment for invoices issued in any given month must be received by Elevate within 30 days after the issuance of the invoice (which may be sent by email). Verification of information may be required prior to the acknowledgment or completion of any payment transaction. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Elevate’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Elevate hereunder. If an applicable tax authority requires Elevate to pay any taxes that should have been payable by Customer, Elevate will advise Customer in writing, and Customer will promptly reimburse Elevate for the amounts paid. Without limiting its other remedies, Elevate may suspend Services for nonpayment of fees.
6.1. Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, or (b) termination pursuant to Section 6.2 below (the “Term”). Each Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically for additional one-year periods unless a party provides notice of nonrenewal to the other party at least 30 days prior to expiration of the applicable term.
6.2. Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (a) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets.
6.3. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7.1. Authority. Each of Elevate and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2. Services Warranty. Elevate shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner.
7.3. ELEVATE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ELEVATE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1. By Elevate. Elevate at its own expense will defend or settle any claims, actions and demands brought by third parties against Customer and Customers subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively “Indemnified Parties”) where the third party expressly asserts that the Software: infringes such third party’s trademark or copyright arising under the laws of the United States, or Elevate misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Customer must give written notice of the Claim to Elevate promptly after Customer becomes aware of the Claim, and Elevate’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Elevate, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Elevate or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customers use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Elevate to be infringing, Elevate may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
8.2. By Customer. Customer at its own expense will defend or settle any third party claims, actions and demands against Elevate where a third party asserts that the Customer Data or its use has infringed the rights of a third party or violated applicable law; provided that in any such case Elevate gives written notice of the Claim to Customer promptly after Elevate becomes aware of such Claim, and Customers indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.
9.1. NO CONSEQUENTIAL DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF THEY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMERS LIABILITY FOR MISAPPROPRIATION OF ELEVATES INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND SERVICES.
9.2. LIMIT ON DAMAGES. THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO ELEVATE DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS UNDER SECTION 5.
10.1. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
10.2. Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the initial Order Form.
10.3. Enforceability. If any provision of this Agreement is adjudicated invalid or unenforceable, this Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect.
10.4. Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
10.5. Assignment. This Agreement may not be assigned by either party without the other party’s consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
10.6. Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Elevate in lieu of or in addition to Elevate’s Order Form, Customers purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
10.7. Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement. From time to time Elevate may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect.
10.8. Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement must be brought in the federal or state courts in Denver, Colorado and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorneys fees and expenses and court costs.