Terms of Service

Updated: February 15, 2023

These Terms of Service (“Terms of Service“), together with our Acceptable Use Policy, Data Processing Agreement, and any Service Order (as defined below) or Master Service Agreement, collectively constitute a binding agreement (the “Agreement”) between Elevar, LLC (“Elevar” or “we”) and you or the legal entity you represent (“Customer” or “you“).

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “SIGN UP” BUTTON OR BY INSTALLING THE ELEVAR APP FROM THE SHOPIFY APP STORE, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ELEVAR, (3) THE INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE INDIVIDUAL OR LEGAL ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT USER TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU DO NOT HAVE SUCH AUTHORITY OR ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ELEVAR, YOU MAY NOT ACCESS OR USE THE SERVICES.

If you have any questions about these Terms of Service or the Services, please reach out to Elevar Support.

  1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

   1.1.“Account Parameters” means the parameters within which you and your Authorized Users may access and use the Platform, as set forth in the applicable Order Form. 

   1.2. “Authorized User” means any individual who is an employee of Customer or an affiliate, partner, service provider or such other person or entity as may be authorized by Customer to access the Services pursuant to Customer’s rights under this Agreement.

   1.3. “Beta Features” means pre-release features, functionalities, or modules of the Platform that are made available to you to use and evaluate.

   1.4. “Billing Information” means any of your or your customers’ billing information, including, without limitation, bank account numbers, credit card or debit card numbers, account details, ACH information, and similar data.

 1.5. “Customer Communications” means communications sent via the Services, including emails, SMS and MMS messages, communications through websites and transactions, and other similar communications.

 1.6. “Customer Data” means any data, information, programs, and other content provided or transmitted by Customer or its Authorized Users to the Services, including, without limitation, Customer Marketing Content and personal data, including personal data of end customers and prospects.

 1.7. “Customer Marketing Content” means trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content, including content in Customer Communications provided or transmitted by Customer or its Authorized Users to the Services in connection with the advertising, promotion, and sale of products and services.

 1.8. “Data” means any information that you or your Authorized Users submit to the Platform.

 1.9. “Documentation” means any written information prepared by Elevar, including any applicable service descriptions that are made available by Elevar to Customer, as may be updated from time to time or is specifically defined in a Service Level Agreement.

   1.10. “Free Products” means tools, features, functionalities, or modules of the Platform that are made available to you to use at no charge.

   1.11. “Initial Subscription Term” means the initial period when we will provide you the Service, as set forth in the applicable Order Form.

 1.12. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including, without limitation, all exclusive exploitation rights, copyrights, neighboring rights, moral rights, and mask-works, (ii) trademark, trade dress, and trade name rights and similar rights, (iii) trade secret rights, (v) patents, designs, algorithms, and other industrial property rights, (vi) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force throughout the universe. For purposes of this Agreement, the Intellectual Property Rights of or belonging to Elevar shall include the Intellectual Property Rights of its licensors, service providers, and collaborators embodied in the Software or any modifications, updates, customizations, or derivative works thereof, but shall not include any intellectual property expressly provided by Customer to Elevar in connection with the Services and used under a Statement of Work.

 1.13. “Order Form” means: (i) an order form for the Service and/or any Professional Services mutually executed by the Parties that sets forth, among other things, the Account Parameters and the attendant Subscription Fees when you are ordering the Service and a description of the Professional Services to be performed, including any applicable specifications, service levels, milestones, and Deliverables and the Professional Services Fees when you are ordering Professional Services; or (ii) an order form that you electronically submit via the Platform either during the subscription enrollment process or after enrollment when you wish to upgrade your Account Parameters, subscribe to additional features, or order any Professional Services.

 1.14. “Overage” means any use of the Platform in excess of the Account Parameters or allotted order volume defined in your Order Form or Statement of Work.

 1.15. “Platform” means our proprietary, cloud-based platform, as set forth in the applicable Order Form.

 1.16. “Professional Services” means any service that Elevar provides to you pursuant to an Order Form or Statement of Work, such as training, installation, integration, or consulting services.

 1.17. “Services” means Elevar’s cloud based services including support and other services made generally available and subscribed by Customer in an Order Form or Statement of Work.

 1.18. “Service” means our provision to you of access to and usage of the Platform through the Website as set forth in the applicable Agreement.

   1.19. “Statement of Work” means any written statement signed by the parties that details the Services to be provided by Elevar to Customer, and guides and documents the interactive process and engagement between Customer and Elevar during the undertaking of the Services or Professional Services.

   1.20. “Software” shall mean any computer code, computer program, script, subroutine, patch, executable file, or machine-readable code that (i) is created, developed, modified, customized, or released by Elevar, or (ii) is received by Elevar from a third party other than Customer in the course of performing its duties and obligations under this a.  Notwithstanding the foregoing, Software shall not include Source Code.

   1.21. “Source Code” shall mean any human-readable form of Software that enables changes, modifications, error corrections, customizations or derivative works to be made relating to the Software.

   1.22. “Subscription Fees” means the fees for the Service set forth in the applicable Order Form or Statement of Work.

   1.23. “Subscription Term” means the Trial Period, if any, the Initial Term, and any Renewal Subscription Terms, collectively.

   1.24. “Trial Period” means any period during which we provide you the Service on a trial basis, as set forth in the applicable Order Form or Statement of Work.

   1.25. “Website” means any website through which we provide access to the Platform.

  1. TRIAL PERIOD, SUBSCRIPTION SERVICE, & PROFESSIONAL SERVICES

   2.1. Trial Period. If you register for a trial, we will provide the Service to you free of charge during the Trial Period. Following the Trial Period, if you have not canceled your subscription as set forth in Section 13.2, your subscription will automatically convert to a paid subscription, and the first day after the Trial Period shall constitute the first day of the Initial Subscription Term. Following the Trial Period, if you have not selected a subscription tier, your access to the Platform will be limited to Free Products, and we will automatically set capacity limitations. During the Trial Period, our representations and warranties set forth in Section 8.1 and Section 8.2 shall not apply, and we will not be liable to you for damages of any kind related to the Agreement, including, without limitation, your use of the Platform or Website. Unless otherwise set forth in a Order Form or Statement of Work, Elevar may terminate a free trial at any time at its sole discretion.

   2.2. Subscription Service. During the Subscription Term, we will provide you the Service subject to the terms and conditions of the Agreement, including, without limitation, the Account Parameters set forth in the Order Form. When you have purchased a subscription to our Google’s Server plan (formerly GTM Server-Side plan): (i) you are solely responsible for securing sufficient capacity on the Servers for the Data and for hosting and maintaining the Servers (or contracting with Elevar or a third party to do so); and (ii) you shall provide us all information (such as access credentials and Server information) necessary to load the Data on the Servers. 

   2.3 Changes to Service. At any time, you may subscribe to additional features of the Service and/or upgrade the Account Parameters by agreeing to a new Order Form.

   2.4 Modifications. We may modify the Platform and our Website from time to time by adding or deleting features to improve the user experience.

   2.5 Technical Support, Implementation Support, and Training. Primary technical information is provided through documentation available on the Platform and Elevar’s online Knowledge Base. We accept support questions twenty-four (24) hours per day, seven (7) days per week through the Platform. Responses to support questions submitted through the Platform are provided during our normal business hours. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time. Phone support, if any, is described on the Platform.

   2.6 We provide the following technical support at no additional charge: addressing issues of availability and identifying and troubleshooting issues that prevent you from using the Platform as designed. Unless otherwise described on the Platform, technical support issues and training beyond that scope are treated as professional services and are billed at our then-current professional services rate.

   2.7 Beta Features. From time to time, we may invite you to try Beta Features. You may accept or decline any such trial at your sole discretion. An important part of this beta process is getting real-world testing of the Beta Features before a general release. If you agree to participate in a beta trial, the following additional terms and conditions will apply: You agree to use and test the Beta Features and to provide timely feedback, comments, and suggestions (“Feedback”) to our team. You agree that we shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you. You acknowledge that Beta Features are for evaluation purposes only and not for production use, are not considered part of the Service under the Agreement, are not supported, are provided “AS IS” with no warranties of any kind, and may be subject to additional terms. Unless otherwise stated, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available or we elect to discontinue such Beta Feature. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available. WE WILL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA FEATURE, AND YOU USE ANY BETA FEATURE AT YOUR OWN RISK.

 2.8 Free Products. We may, in our sole discretion, provide Free Products. You may use such products with or without our paid products at your sole discretion. If you use any or all of our Free Products, the following additional terms and conditions will apply: You acknowledge that Free Products are not considered part of the Service under the Agreement, are not supported, are provided “AS IS” with no warranties of any kind, and may be subject to additional terms. We may discontinue Free Products (or your access to any Free Products) at any time in our sole discretion. WE WILL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE PRODUCT, AND YOU USE ANY FREE PRODUCT AT YOUR OWN RISK.

 2.9 Professional Services. You may elect to have us provide Professional Services in connection with the Service. Fees for the Professional Services are in addition to the Subscription Fees and are payable in full when you engage us to perform the Professional Services. Unless otherwise agreed, we will perform all Professional Services remotely. As noted above, the specific business terms concerning the Professional Services, such as the duration of the Professional Services, the number of hours ordered, and the Deliverables shall be set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, if the Professional Services are of a recurring nature, the duration of the Professional Services shall be for the duration of your subscription to the Service to which the Professional Services relate. If the Professional Services are for a set number of hours, the duration of the Professional Services shall be for the number of hours specified in the Order Form. If an Order Form calls for the creation of Deliverables, it is estimated that those Deliverables will be completed within the time period indicated in the applicable Order Form. If the Professional Services are not completed at the end of the term set forth in the Order Form due to your failure to make the necessary resources available to us or to perform your obligations, such Professional Services will nonetheless be deemed to be completed at the end of such term. If the Professional Services are not completed at the end of the term set forth in the Order Form due to our failure to make the necessary resources available to you or to perform our obligations, the term will automatically be extended to allow us to complete such Professional Services. We might provide some or all elements of the Professional Services through third-party service providers. Professional Services are non-cancellable, and all Professional Services Fees are non-refundable.

 2.10 Ownership of Work Product and Use of Deliverables. Elevar owns and shall retain all rights, title, and interest, including all intellectual property rights, in and to all Work Product. Upon your payment of all Professional Services Fees due to us in connection with a Deliverable, you may use the Deliverable solely for your internal purposes as described in the applicable Order Form.

  1. PROVISION OF SERVICES

 3.1. Access. Subject to the terms and conditions of the Agreement, Elevar grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below). Customer may permit its Authorized Users to use the Services provided that Customer shall be responsible for each Authorized User’s compliance with and breach of the Agreement and shall indemnify and hold harmless Elevar for the same.

 3.2. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Elevar); (d) bypass, delete, or disable any copy protection or security mechanisms of the Services; (e) use or demonstrate the Services in any other way that is in competition with Elevar; (f) remove any notice of proprietary rights from the Services; (g) attempt to gain unauthorized access to, or disrupt the integrity, performance or security of the Services or the data contained therein; (h) use or copy the Services or Documentation, except as expressly allowed herein; or (i) use the Services in violation of the Acceptable Use Policy. Elevar shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of theAgreement.

 3.3. Downtime. Customer acknowledges that access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Elevar, AND ELEVAR WILL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY SUCH DOWNTIME.

 3.4. Non-Elevar Products and Services. Customer may use the Services to interact with non-Elevar products or services including webshop or e-commerce platforms (“Non-Elevar Services”). If Customer chooses to integrate the Services with any Non-Elevar Services, Customer will ensure that Customer’s use of the integration does not conflict with the Non-Elevar Services provider’s (“Provider”) terms and conditions or the Agreement.

Any acquisition by Customer of such Non-Elevar Services, and any exchange of data between Customer and any Provider of Non-Elevar Services is solely between Customer and the applicable Provider. Elevar does not warrant or support any Non-Elevar Services, whether or not they are designated by Elevar as “certified” or otherwise. Elevar is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Elevar Services or its Provider.

Further, some Non-Elevar Services may require Customer or Elevar to provide certain Customer Data that Elevar is processing on Customer’s behalf back to the Provider. In these cases, Elevar considers Customer’s request to integrate with the Non-Elevar Services as instruction to provide this data to the Provider according to the Provider’s terms and conditions. If Customer does not want this data to be provided to the Provider, Customer will immediately request the suspension of the integration with the respective Provider.

  1. USE OF THE SERVICES

 4.1. Setup Responsibilities. Customer shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to its Authorized Users.  Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. In the event that Elevar assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.

 4.2. Customer Account. Customer is solely responsible for protecting and safeguarding Customer’s account and passwords and/or keys or other access protocols that have been provided to Customer or that are generated in connection with Customer’s use of the Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of its account and the Services. Customer is solely and fully responsible for all activities, including accrued charges, that occur in connection with its account and its use of the Services. In the event Customer believes Customer’s account or the Services have been compromised, including any unauthorized use or access of the Services or any other known or suspected breach of security, Customer shall immediately notify Elevar by email to [email protected], but in no event more than twenty-four (24) hours following discovery of such breach.

  1. INTELLECTUAL PROPERTY

 5.1. Ownership. Customer acknowledges and agrees that the Services (including the Documentation) are protected by copyright and other laws relating to Intellectual Property Rights, and that the Services embody valuable confidential information of Elevar and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of Elevar and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by Elevar and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof, including any right to obtain possession of any software, source code, data or other technical material related to the Services.

 5.2. Continuous Development. Customer acknowledges that Elevar may continually develop, deliver and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Elevar reserves the right to modify the Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event Elevar adds additional functionality to a particular Service, Elevar may condition the implementation of such modifications on Customer’s payment of additional fees.

 5.3. Feedback. In the event that Customer or its Authorized Users provide any comments or suggestions in connection with the Services, whether written or oral (collectively, the “Feedback”), Elevar, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Customer. Customer hereby grants Elevar, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Elevar products and services.

 5.4. Aggregated Data. Elevar may collect and derive from Customer Data aggregated data that does not identify Customer, any third-party entity or any natural persons, and use and disclose such aggregated data for Elevar’s legitimate business purposes, which may include but is not limited to Services improvement, service and product development, research and marketing. Additionally, Elevar may collect and review Customer Marketing Content to improve and enhance the Services and for other development, diagnostic and corrective purposes. While Customer Data shall remain the property of Customer, Elevar is permitted to aggregate and anonymize Customer Data and/or other data that Customer provides to Elevar or that is related to Customer’s use of the Services (“Aggregated Data”), provided that such Aggregated Data is anonymized and does not identify to any third party that Customer is the source of the Aggregated Data. Elevar shall be the owner of the Aggregated Data and reserves the right to use, license, and sublicense the Aggregated Data.

  1. FEES AND EXPENSES; PAYMENTS

   6.1. Fees. The Fees and any applicable Taxes (as defined below) are due and payable as set forth below and in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, Elevar may increase the Fees on a prospective basis by providing Customer written notice of such increase at least forty-five (45) days in advance. Payments that are past due shall be subject to a late payment penalty of One Hundred Dollars ($100) to any invoice over 30 days and accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Elevar shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from you that are more than thirty (30) days delinquent.

   6.2. Taxes. The Fees do not include federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which shall be for your account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to Elevar prior to the execution of the Agreement. If Elevar is required to pay Taxes on Customer’s behalf, Elevar shall invoice Customer for such Taxes, and Customer shall reimburse Elevar for such amounts in accordance with this Section 6. Customer hereby agrees to defend, indemnify, and hold harmless Elevar and Elevar’s members, owners, officers, directors, managers, employees, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by Elevar on Customer’s behalf. For the avoidance of doubt, Elevar shall be responsible for any taxes related to Elevar’s income, property, franchise, or employees.

   6.3. Payment by Credit Card and ACH Transactions. Customer hereby authorizes Elevar, as applicable, to charge Customer’s credit card or other payment instrument or issue an ACH transaction, as follows: (i) for Subscription Fees, Elevar may, as applicable, automatically charge (or issue an ACH transaction for) Customer for Subscription Fees and any applicable Taxes in advance on the periodic basis (i.e., monthly or annual) set forth in the applicable Order Form or Statement of Work; (ii) for Overages, Elevar may, as applicable, automatically charge (or issue an ACH transaction for) Customer for any Overages and any applicable Taxes after the end of a billing period (i.e., monthly or annual) set forth in the applicable Order Form or Statement of Work; (iii) for upgrades to the Service that Customer orders pursuant to Section 2.3, Elevar may, as applicable, automatically charge (or issue an ACH transaction for) Customer for any upgrade fees, the associated Subscription Fees and any applicable Taxes in arrears or at the time of the Orders, respectively; (iv) for any Professional Services for a set number of hours, Elevar may, as applicable, automatically charge (or issue an ACH transaction for) Customer for the associated Professional Services Fees and any applicable Taxes in advance in full; and (v) for any Professional Services of a recurring nature, Elevar may, as applicable, automatically charge (or issue an ACH transaction for) Customer for the associated Professional Services Fees and any applicable Taxes in advance on the same periodic basis that we charge Customer the Subscription Fees for the Service to which the Professional Services relate. Customer further authorizes Elevar to use a third party to process payments and hereby consents to the disclosure of Customer’s Billing Information to such third party. Customer may receive a receipt upon Elevar’s receipt of payment or Customer may obtain a receipt from the Platform to track your subscription status.

   6.4. Payment Against Invoice. If Customer is paying any Fees and Taxes by invoice, Elevar will invoice Customer as follows: (i) for Subscription Fees, Elevar will invoice Customer in advance on the periodic basis (i.e., monthly or annual) set forth in the applicable Order Form, unless otherwise set forth in a Statement of Work; (ii) for any upgrades to the Service that Customer orders pursuant to Section 2.3, Elevar will invoice Customer at the time of the order; (iii) for any Overages, Elevar will invoice Customer at the end of the billing period and at the time of Customer’s cancellation, or as specified in Customer’s Order Form or Statement of Work; (iv) for any Professional Services determined by a predefined scope of work, Elevar will invoice Customer the associated Professional Services Fees and any applicable Taxes in advance in full, unless otherwise set forth in a Statement of Work; and (v) for any Professional Services of a recurring nature, Elevar will invoice Customer the associated Professional Services Fees and any applicable Taxes in advance on the same periodic basis that Elevar invoices Customer the Subscription Fees for the Service to which the Professional Services relate. All amounts invoiced are due and payable upon receipt of the invoice, unless otherwise specified in the Order Form or Statement of Work, and late payments and non-payments are subject to the terms set forth in Section 6.1.

   6.5. Payment Information. Elevar will keep Customer’s contact information, Billing Information, and credit card information (where applicable) up to date. Changes may be made on Customer’s billing page within the Elevar Platform.

   6.6. Non-Cancelable and Non-Refundable. Except as expressly stated in Section 6.4 and Section 13.4, all Fees and Taxes payable under any Agreement, including all Order Forms, are non-cancelable, and all payments made are non-refundable.

  1. CUSTOMER DATA AND RESPONSIBILITIES

 7.1. Customer Data. Customer Data, and all worldwide Intellectual Property Rights therein, is, as between Elevar and Customer, the exclusive property of Customer. Customer grants Elevar a non-exclusive, sublicensable, transferable, worldwide, royalty-free and fully paid license to process and use the Customer Data as necessary for purposes of providing the Services and as otherwise permitted in this Agreement. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right and has or will obtain the necessary permissions, valid consents and releases to lawfully transmit, store and use all Customer Data in connection with the Services and to grant the rights granted to Elevar under this Agreement.

 7.2. Customer Personal Data. Elevar shall collect, use, disclose and otherwise process Customer Personal Data (as defined in the Data Processing Agreement), and safeguard the privacy, confidentiality and security of Customer Personal Data in accordance with the requirements set forth in the Data Processing Agreement, which is hereby incorporated into this Agreement by reference. The Data Processing Agreement does not apply to Account Information.

 7.3. Customer Account Information. Elevar’s use of Account Information shall be in accordance with the Privacy Policy, and Customer consents to such usage. “Account Information” means information about Customer that Customer provides to Elevar in the creation or administration of its Elevar account. For example, Account Information includes names, usernames, login credentials, phone numbers, email addresses and billing information associated with an Elevar account.

 7.4. Customer Responsibilities for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other account information required in order to access and use the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data, and for the adequate security, protection and backup of Customer’s Data.

  1. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

 8.1. Mutual Representations and Warranties. Elevar and Customer each represents and warrants that: (i) it has full corporate right, power, and authority to enter into the Agreement and (ii) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound.

 8.2. Customer Representations and Warranties. Customer represents and warrants that: (i) Customer has a legally sufficient privacy policy that is made available to end customers and prospects prior to their provision of any Customer Personal Data to Customer or Elevar; (ii) the Customer Data and use of the Customer Data (a) will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party, (b) will not constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, and (c) will not be used in any activity in violation of the law or to promote such activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; (iii) it will not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; and (iv) Customer will comply with and will at all times honor the terms and conditions of any on-line coupon or similar marketing offer, deal or advertisement to market Customer’s products and services offered or otherwise promoted via the Services.

 8.3. Limited Warranty. Elevar warrants that the Services, when used in accordance with the terms of this Agreement, will perform substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Services resulting from (i) content provided by or passed through Customer or third parties in connection with the Services (including Customer Data); (ii) Customer’s data structures, operating environment, equipment or other technology; (iii) the use or combination of the Services with any other software, services or hardware not supported by Elevar; (iv) causes external to the Services, such as problems with the hardware, network or other infrastructure with which the Services are used; (v) unauthorized or improper use of the Services; or (vi) any modification of the Services by Customer or its Authorized Users. Provided that Customer notifies Elevar in writing of any breach of the foregoing warranty during the term of this Agreement, Elevar shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct any such actual non-conformance and if Elevar fails to remedy the non-conformity, Customer may terminate the Agreement.

 8.4. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED “AS IS,” AND ELEVAR MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY ELEVAR, AND ANY OFFERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELEVAR DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

  1. LIMITATION OF LIABILITY

 9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELEVAR, NOR ANY OF ITS OWNERS, MEMBERS, EMPLOYES, AGENTS, AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS OR SUPPLIERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT ELEVARr HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF ELEVAR, ITS LICENSORS AND VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER TO ELEVAR FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY ELEVAR TO CUSTOMER IN THAT SIX (6) MONTH PERIOD.

 9.2. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

  1. CONFIDENTIALITY

 10.1. Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information”) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Services, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of Elevar.

 10.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under the Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.

 10.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly (to the extent legally permitted) notifies the Disclosing Party in writing of such required disclosure and reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

 10.4. Remedies. Any breach or threatened or attempted breach of this Section 10 may result in immediate, irreparable harm for which monetary damages would be an inadequate remedy. If a court of competent jurisdiction finds that the Receiving Party has breached (or attempted or threatened to breach) any of the obligations set forth in this Section 10, the Receiving Party agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an appropriate order compelling its performance and restraining it from any further breaches (or attempted or threatened breaches). Any remedy sought or achieved hereunder does not preclude the Disclosing Party from also pursuing any other legal or equitable remedies available to it including, without limitation, monetary damages.

  1. MODIFICATION TO THE AGREEMENT.

11.1 Elevar may amend the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, Elevar may (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. Elevar may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK ELEVAR’S WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. INDEMNIFICATION

 12.1. By Elevar. Elevar will defend at its expense any suit brought against Customer, and will pay any settlement Elevar makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services infringe or misappropriate any Intellectual Property Rights in the U.S., Canada, European Union member countries or the United Kingdom. If any portion of the Services becomes, or in Elevar’s opinion is likely to become, the subject of a claim of infringement, Elevar may, at Elevar’s option: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Services to be non-infringing without materially impairing the functionality of the Services; or (c) terminate this Agreement and refund to Customer the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Elevar shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Customer Data; (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by Elevar; (y) any modification of the Services by any person other than Elevar; and/or (z) modification of the Services based upon specifications furnished by Customer (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Customer Indemnity Responsibility”). This Section 12.1 states the sole and exclusive remedy of Customer and the entire liability of Elevar, or any of the officers, directors, employees, shareholders, owners, members, contractors or representatives of the foregoing, for third party claims and actions described in this Section 12.1.

 12.2. By Customer. Customer will indemnify, defend and hold Elevar, its owners, members, officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a “Elevar Party”) harmless from and against any and all losses, damages, liability, costs and expenses whatsoever, including without limitation, those awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, arising out of or relating to: (a) a Customer Indemnity Responsibility; (b) Customer’s breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; or (c) the use, transmission, access, disclosure, or other processing of Customer Data.

 12.3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual loss, claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

  1. TERM AND TERMINATION

 13.1. Term. These Terms of Service commence on Customer’s registration of an account, and continue until all Services subscriptions in all Order Forms have expired or have been terminated or upon the termination of Customer’s use of the Services, whichever is latest. Unless otherwise specified on an applicable Order Form, Customer’s subscription to the Services commences on Customer’s registration for an account, and shall continue in effect for thirty (30) days (the “Initial Term”). Thereafter, and unless otherwise specified in an Order Form, each applicable Order Form shall automatically renew for successive thirty (30) day terms (each a “Renewal Term”), unless either party provides notice to the other party of its intention not to renew prior to expiration of the Initial Term or the then-current Renewal Term. Customer must provide at least five (5) days prior notice and Elevar must provide at least fifteen (15) days prior notice of non-renewal. Notification of such non-renewal from Customer to Elevar must be provided in writing to [email protected] or by submitting a ticket to Elevar Support, which must be confirmed in writing by Elevar. The Initial Term and all Renewal Terms will collectively be referred to as the “Term”.

 13.2. Suspension, Limitation and Termination of Access. Elevar shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event that Elevar determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Authorized Users, in violation of any applicable laws or regulations or the Agreement; (ii) the Services are being used by Customer in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects Elevar’s equipment or service to others; (iv) Elevar is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service, attack or any other event which Elevar determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of the Services, Customer’s account or Customer Data; or (vii) any amount due under this Agreement is not received by Elevar within fifteen (15) days after it was due. Without limiting the generality of this Section, Elevar shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section 13.2.

 13.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) each party shall comply with the obligations to return or destroy all Confidential Information of the other party, as set forth in Section 10.2. Additionally, Elevar shall have no obligation to retain any Customer Data after any termination or expiration of the Agreement and may delete all Customer Data, unless required by applicable law. All liabilities accrued under the Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1 (Definitions), 5 (Intellectual Property), 6 (Fees and Expenses; Payments), 8.4 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Modification to the Agreement), 12 (Indemnification), 13.2 (Suspension, Limitation and Termination of Access), 13.3 (Effect of Termination) and 14 (Miscellaneous).

  1. MISCELLANEOUS

 14.1. Marketing. Customer understands and agrees that Company may disclose in its marketing materials, including advertising, case studies and brochures in printed, electronic, and online formats (“Marketing”), that it is an approved service provider of Customer with respect to the Services and/or Deliverables described in an Order Form or Statement of Work.  For purposes of the foregoing, Customer hereby grants to Company a limited, non-exclusive, and perpetual license to use Customer’s name, logos and testimonials in its Marketing. 

 14.2. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of South Carolina, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Charleston County, South Carolina for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer may not bring any suit or action against Elevar for any reason whatsoever more than one (1) year after the cause of action accrued.

 14.3. Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any any software, technology or information forming a part of the Services or the Documentation in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.

 14.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

 14.5. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 14.6. No Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of Elevar. Any assignment by Customer without the prior written consent of Elevar shall be null and void. Elevar may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.

 14.7. Force Majeure. Without limiting any other provision in the Agreement, Elevar, or any Elevar Party, is not responsible or liable to any Customer for delay or failure to perform its obligations hereunder in the event that any of Elevar or Elevar Parties’ operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable Elevar Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.

 14.8. Independent Contractors. Each party’s relationship to the other party is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

 14.9. Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.

 14.10. Notices. Where Elevar requires Customer to provide an email address, Customer is responsible for providing Elevar with its most current email address. In the event that the last email address provided to Elevar is not valid, or for any reason is not capable of delivering to Customer any notices required or permitted by the Agreement, Elevar’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to Elevar at the following email address: [email protected]. Notice shall be deemed to have been duly given on the first business day following successful email transmission to Elevar.

 14.11. Entire Agreement and Order of Precedence. The applicable Master Service Agreement, Statement of Work, Order Form, Data Processing Agreement, Acceptable Use Policy, and these Terms of Service constitute the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. In the event of a conflict, the Agreement documents shall govern in the order of precedence stated in the preceding sentence. Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other Customer-provided form are specifically null and void. Except as otherwise set forth in the Agreement, no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Elevar.

 

Previous Versions:

July 25, 2017