Elevatie Terms of Service

 

Last Updated: July 19, 2018

 

ELEVATIE INC TERMS OF SERVICE AND SAAS AGREEMENT

This Services Agreement (“Agreement”) is between Elevatie, Inc. (“Service Provider”), AND you the (“Client”).

 

RECITALS

WHEREAS, Client requires third-party hosted software as a service (“SAAS” or the “Services,” as further described herein) with respect to certain of its information technology needs;

WHEREAS, Client requested a proposal from Service Provider for such Services;

 

WHEREAS, Service Provider has experience and expertise in the business of providing such Services;

 

WHEREAS, Service Provider submitted a proposal to Client to perform such Services on behalf of Client;

 

WHEREAS, based on Service Provider’s knowledge and experience relating to such Services, Client has selected Service Provider to provide and manage the Services;

 

WHEREAS, Service Provider wishes to perform the Services and acknowledges that the successful performance of the Services and the security and availability of Client’s data (“Client’s Data” as further described herein) are critical to the operation of Client’s business; and,

 

WHEREAS, Service Provider has agreed to provide the Services to Client, all on the terms and conditions set forth herein, and that this Agreement includes and incorporates the Schedules attached hereto.

 

NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:

 

 

1. SAAS SERVICES AND SUPPORT

1.1                Subject to the terms of this Agreement, Service Provider will provide Client with reasonable technical support services in accordance with the terms set forth in Schedule “B” attached hereto.

 

2. RESTRICTIONS AND RESPONSIBILITIES

2.1                This Agreement sets forth the terms and conditions under which Service Provider agrees to provide all services necessary to drive online reviews to Google (the “Services”). The Agreement shall remain in effect unless terminated as provided for herein.

2.3                Service Provider grants Client a renewable, irrevocable, nonexclusive, royalty-free, and worldwide right for any of Client’s employees, or any other individual or entity authorized by Service Provider (each, an “Authorized User”), to access and use the Services.

2.4                The parties acknowledge and agree that this Agreement constitutes a grant of a license to Client for the use of intellectual property contained in software by developed by Service Provider. This Agreement does not grant any form of proprietary right or interest in favour of Client in Service Provider’s intellectual property.

2.5                 The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider, giving due consideration to the requests of Client. Except as otherwise specified. The Services shall be provided solely from within Canada and USA.

2.6                Client may not remove or export from Canada or allow the export or re-export of the Services, Software (defined below, at Article 2.9) or anything related thereto, or any direct product thereof.

2.7                Client represents, covenants, and warrants that Client will use the Services only in compliance with Service Provider’s standard published policies then in effect (the “Policy and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services.

2.8                Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

2.9                Client shall 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 (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for the benefit of a third party; or remove any proprietary notices or labels.

 

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1                Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose sensitive business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Service Provider includes non-public information regarding features, functionality and performance of the Services, as well as non-public data provided by Client to Service Provider to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can demonstrate (a) is or became generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2                Service Provider shall own all right, title and interest in and to the Client Data, as well as any data that is based on or derived from the Client Data and provided to Client as part of the Services. Service Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3                Notwithstanding anything to the contrary, Service Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and  Service Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

3.4                For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that:  (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party.  The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).  For purposes of this Agreement, in all cases and for all matters, Client Data shall be deemed to be Confidential Information.

3.5                The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than their employees, subcontractors or agents who have a need to know such Confidential Information in connection with this Agreement, or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The parties agree to advise their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential, and will require their respective employees, agents, and subcontractors to honour such obligations.

3.6                Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

3.7                Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which may not be adequately compensable in the form of monetary damages.  Accordingly, a party may seek and obtain injunctive or other equitable relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

3.8                Upon termination of this Agreement, each party shall, within five (5) calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Service Provider shall return Client Data to Client following the timeframe and procedure described further at Article 5.5 of this Agreement.  Should Service Provider or Client determine that the return of any non-Client Data Confidential Information is not feasible; such party shall destroy the non-Client Data Confidential Information and shall certify the same in writing within five (5) calendar days from the date of termination to the other party. Non-Client Data Confidential Information is any phone numbers, names and emails that are associated with Clients account.

3.9                Without limiting Service Provider’s obligation of confidentiality, Service Provider shall be responsible for establishing and maintaining a data privacy and information security program (incorporating SSL encryption), including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Client Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Client Data; (c) protect against unauthorized disclosure, access to, or use of the Client Data; (d) ensure the proper disposal of Client Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing.  In no case shall the safeguards of Service Provider’s data privacy and information security program be less stringent than the safeguards used by Client.

3.10            Client gives its consent for Service Provider to provide Client with electronic messages in connection with the Services, in accordance with applicable anti-spam legislation.

3.11            The obligations set out in Section shall survive the termination of this Agreement.

 

4. PAYMENT OF FEES

4.1                Client will pay Service Provider the applicable fees described in the Registration and/or Order Form for the Services and Implementation Services in accordance with the terms therein (the “Monthly Service Fees”).  If Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Overages will be calculated per account based on Twilio’s usages and any in excess of the agreed “Monthly Service Fee” client will be billed 1.5x the excess plus “Monthly Service Fee” by invoice to “Client”.Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days’ prior notice to Client (which may be sent by email). If Client believes that Service Provider has billed Client incorrectly, Client must provide notice to Service Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Service Provider’s Client support department.

4.2                Service Provider may choose to bill using an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider fifteen (15) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 3.5% per month (42% per annum, being an effective annual rate of 51.1%) 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 Service. Client shall be responsible for all taxes associated with Services.

5. TERM AND TERMINATION

5.1                This Agreement is legally binding and shall continue until terminated as provided for herein. Following the Initial Service Term and unless otherwise terminated as provided for in this Agreement, the Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) days prior to the last day of the term existing at the time; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.

5.2                Either party may terminate this Agreement upon sixty (60) days’ prior written notice to the other party.

5.3                The provision of Services under this Agreement may be terminated by a Party upon 30 days’ notice to the other Party (the “Defaulting Party”) upon the occurrence of any of the following events:

(i)                   if the Defaulting Party is in default of any material term of this Agreement and the default has not been cured within 30 Business Days of written notice of that default having been given by one Party to the Defaulting Party;

(ii)                 if the Defaulting Party becomes insolvent, makes an assignment for the benefit of creditors or is the subject of any proceeding under any bankruptcy and/or insolvency law;

(iii)                if the Defaulting Party winds up, dissolves, liquidates or takes steps to do so or otherwise ceases to function as a going concern; or

(iv)               if a receiver or other custodian (interim or permanent) of any of the assets of the Defaulting Party is appointed by private instrument or by court order or if any execution or other similar process of any court becomes enforceable against the Defaulting Party or its assets or if distress is made against any of the Defaulting Party’s assets.

5.4                Despite any termination of this Agreement, the Parties will complete a final reconciliation of amounts owed to either party under this Agreement. Termination of this Agreement will not release, discharge or otherwise affect the obligation of the Client to pay for any Services provided to it before the termination took effect, including any interest on unpaid amounts.

5.5                Upon the termination of this Agreement, Service Provider shall, within three (3) business days provide Client, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Service Provider), with a final extract of the Client Data in the format specified by Client if applicable.  Further, Service Provider shall certify to Client the destruction of any Client Data within the possession or control of Service Provider but such destruction shall occur only after the Client Data has been returned to Client.

5.6                This Section shall survive the termination of this Agreement.

6. WARRANTY AND DISCLAIMER

Service Provider 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 the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Service Provider 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 AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INDEMNITY

 

7.1                Service Provider shall hold Client harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Service Provider is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.

7.2                Service Provider will not be responsible for any settlement it does not approve in writing.

7.3                The foregoing indemnity obligations do not apply with respect to portions or components of the Service (i) not supplied by Service Provider, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Service Provider, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement.

7.4                If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Service Provider to be infringing, Service Provider may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.

7.5                Client agrees to defend, indemnify and hold harmless Service Provider, its agents or employees, from and against any loss sustained or incurred by Service Provider, its agents or employees, which arises or results directly from the breach by Client of any representation, warranty or covenants contained in this Agreement.

7.6                The indemnities in this Article 7 are continuing and irrevocable and the obligations of a Party under this Agreement will not be released, discharged, impaired or affected by:

(i)                   any extensions of time or variations of obligations which the Party may grant or permit in respect of the observance or performance of any of the obligations of the Party;

(ii)                 any waiver by or neglect or failure of the Party to enforce any of the terms, covenants and conditions in respect of this Agreement; or

(iii)                any amendment to this Agreement.

 

7.7                This Section shall survive the termination of this Agreement.

 

 

 

8. LIMITATION OF LIABILITY

8.1                NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY.

8.2                A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT.

8.3                This Section shall survive the termination of this Agreement.

 

9. MISCELLANEOUS

9.1                Service Provider represents and warrants that it is an independent contractor with no authority to contract for Client or in any way to bind or to commit Client to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Client.  Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of Client.

9.2                This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada, as applicable.  Service Provider hereby consents and submits to the jurisdiction and forum of the courts in the Alberta in all questions and controversies arising out of this Agreement.

9.3                In any arbitration, litigation, or other proceeding, informal or formal, by which one party either seeks to enforce this Agreement or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable attorneys’ fees.

9.4                Both parties agree to comply with all applicable federal, provincial, and local laws, orders and regulations issued, where applicable. Service Provider shall comply with Client policies and procedures where the same are posted, conveyed, or otherwise made available to Service Provider.

9.5                Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.  Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder.

9.6                Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control (a “Force Majeure Event”).  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party.  However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Service Provider fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement.  The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

9.7                A Force Majeure Event does not excuse Service Provider from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of Client Data.  In no event shall any of the following constitute a Force Majeure Event: (a) failure, inadequate performance, or unavailability of Service Provider’s subcontractors, if any; or, (b) configuration changes, other changes, Viruses, or other errors or omissions introduced, or permitted to be introduced, by Service Provider that result in an outage or inability for Client to access or use the Services.

9.8                Service Provider reserves the right to refer to Client directly or indirectly in any advertisement, news release, or publication.

9.9                The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

9.10            Neither this Agreement nor any right or obligation under this Agreement may be assigned by any Party without the prior written consent of the other Parties. This Agreement enures to the benefit of and is binding upon the Parties and their respective heirs, executors, administrators, estate trustees, trustees, personal or legal representatives, successors and permitted assigns.

9.11            This Agreement and its attached Schedules constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Client and Service Provider as to the subject matter hereof.

9.12            This Agreement may only be amended by an instrument in writing signed by the parties.  This Agreement shall be construed without regard to the party that drafted it.  Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.

9.13            All rights and remedies of Client herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Service Provider for the enforcement of this Agreement, and temporary and permanent injunctive relief.

9.14            Each Section of this Agreement is distinct and severable. If any Section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that Section, in whole or in part, will not affect:

(i)                   the legality, validity or enforceability of the remaining Sections of this Agreement, in whole or in part; or

(ii)                 the legality, validity or enforceability of that Section, in whole or in part, in any other jurisdiction.

9.15            This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.  The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.

9.16            Any Communication must be in writing and either:

(i)                   delivered personally or by courier;

(ii)                 sent by prepaid registered mail; or

(iii)                transmitted by facsimile, e-mail or functionally equivalent electronic means of transmission, charges (if any) prepaid.

9.17            Any Communication must be sent to the intended recipient at its address as follows:

 

 

SCHEDULE “B”

Support Terms – Our Commitment to You

1. Technical Support: Service Provider shall provide the Technical Support as described in Schedule “B”. The Services Fees shall be inclusive of the fees for the Technical Support.

1. Maintenance: Service Provider shall provide corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described in the Documentation, is available to Authorized Users; (b) the functionality of the Services in accordance with the representations and warranties set forth herein, including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and the Documentation; (c) the Service Level Standards can be achieved; and, (d) the Services work with the current version and the one prior versions of Internet Explorer, Safari, Mozilla Firefox, and Google Chrome Internet browsers.  The Services Fees shall be inclusive of the fees for maintenance.

 

1. Customization / Integration Services: Service Provider shall provide the Customization / Integration Services, if any.  The Monthly Services Fees shall be inclusive of the fees for the Customization / Integration Services.

 

1. Training Services: Service Provider shall provide the Training Services, if any.  The Monthly Services Fees shall be inclusive of the fees for the Training Services.

 

1. Technical Support Description: Service Provider will provide to Client telephone and email support (“Technical Support”). Technical Support will include any research and resolution activity performed by Service Provider.

1. a) Request for Technical Support: Authorized Users will make Technical Support requests by calling or emailing Service Provider’s Technical Support staff or by submitting a request via Service Provider’s Client service web portal.