IMPORTANT: IF CUSTOMER DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CUSTOMER MAY NOT ACCESS OR USE ELEVATION DIRECT ONE.
1.1. Elevation Direct One is an online application designed to make your work life easier and is provided by Elevation Direct Corporation (“Elevation Direct”).
1.2. This Elevation Direct One Subscription Agreement (“Agreement”) is between Elevation Direct and the customer (individual or entity) that has purchased a subscription to Elevation Direct One (“Customer” or “You” or “your”). If You are an individual using Elevation Direct One on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and You represent and warrant that You are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement. The “Effective Date” of this Agreement is provided in the first Ordering Document referencing this Agreement.
This Agreement permits the parties to enter into order forms referencing this Agreement (“Ordering Document(s)”), which set forth the quantity of Permitted Users (defined below), specify the fees payable by Customer and contain other terms and conditions. This Agreement shall govern Customer’s initial purchase as well as any future purchases referencing this Agreement. This Agreement includes any and all attachments and referenced policies, including without limitation Elevation Direct’s Support Policy and all Ordering Documents entered into between the parties.
This Agreement applies only to Elevation Direct One and does not grant Customer rights to any other Elevation Direct services or software (such as Elevation Direct Sales Management Suite), which are made available under separate agreements.
From time to time, Elevation Direct may modify this Agreement. Unless otherwise specified by Elevation Direct, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. Elevation Direct will use reasonable efforts to notify Customer of the changes through communications through email or other means. Customer may be required to click to accept the modified Agreement before using Elevation Direct One in a renewal Subscription Term, and in any event continued use of Elevation Direct One during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
Elevation Direct’s Provision of Elevation Direct One
2.1. Elevation Direct One is provided on a subscription basis for a set term designated herein or in the applicable Ordering Document (each, a “Subscription Term”). Subject to the terms and conditions of the Agreement, Elevation Direct hereby grants to Customer a non-exclusive, non-transferable, worldwide right during the applicable Subscription Term to access and use Elevation Direct solely for Customer’s business purposes and pursuant to the Documentation and any restrictions designated in the applicable Ordering Document.
2.2. Campaign Specification and Deliverables. Your Elevation Direct One subscription provides You with the ability to specify sales campaigns in Elevation Direct One and to make certain custom modification requests to Elevation Direct One to meet the functional requirements for each campaign (“Deliverables”). Customization requests may include Your source data upload specifications or logic (for example in the formulation of pay structures in the Commissions1 portal). You agree, either through the registration portal or through other media acceptable to Elevation Direct, to provide Elevation Direct with the information that it requires to prepare the Deliverables. Elevation Direct, however, may reject at its sole discretion and for any reason a request for customizations in one or more Deliverables or for a Deliverable in its entirety.
2.3. Delivery and Acceptance. After Elevation Direct has agreed to prepare the Deliverables, Elevation Direct shall provide You with an estimated timeline for deployment. After Elevation Direct notifies You that it has deployed the Deliverables (“Delivery Date”), You will have three (3) business days to test performance and identify any potential defects in the Deliverables before the Deliverables are deemed accepted. On the fourth day after the Delivery Date, provided You assert no defect in the Deliverables, the Deliverables are deemed accepted in full (“Acceptance Date”). In the case You assert a defect, Elevation Direct will review. If, in the reasonable professional judgment of Elevation Direct, the asserted defect is valid, Elevation Direct will correct the defect and resubmit for customer acceptance, the date on which Elevation Direct notifies You of the redeployment corresponding to the updated Delivery Date. If, in the reasonable professional judgment of Elevation Direct, the asserted defect is not valid, the original Delivery Date and associated Acceptance Date are unchanged.
2.4. Changes after Acceptance. Elevation Direct may, after the Acceptance Date, accept or reject at its sole discretion any additional requested changes to the Deliverables.
2.5. Permitted Users. Use of and access to Elevation Direct One is permitted only by the number of users specified in the applicable Ordering Document (“Permitted Users”). The Permitted Users will receive user IDs and passwords to access Elevation Direct One. These credentials are granted to individual, named persons and may not be shared. Customer will ensure that all Permitted Users keep these credentials strictly confidential. Customer may assign different access rights to Permitted Users (e.g., admin users, read-only users, etc.), as explained in the Documentation. Customer is responsible for any and all actions taken by Permitted Users or by anyone using Customer’s accounts and passwords. Subject to the terms and conditions of this Agreement, in addition to Customer’s employees, Customer may permit (a) its independent contractors and consultants who are not competitors of Elevation Direct (“Contractors”) and (b) Customer’s Affiliates to serve as Permitted Users. Customer will remain responsible for compliance by each of its Permitted Users with all of the terms and conditions of this Agreement, and any use of Elevation Direct One by Permitted Users must be for the sole benefit of Customer. Use of Elevation Direct by all Permitted Users in the aggregate must be within the restrictions in the applicable Ordering Document. “Affiliate” means each legal entity that is directly or indirectly controlled by Customer on or after the Effective Date, for so long as such entity remains directly or indirectly controlled by Customer (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership).
2.6. If You breach any of the terms and conditions of this Agreement, as determined by Elevation Direct in its sole discretion, You agree that Elevation Direct may disable access to your Elevation Direct One account (“Your Account”); and you may be prevented from accessing Elevation Direct One or your account details, data, or other material that you submit, post, or display on or through Elevation Direct One (collectively “Your Material”) that become part of Your Account.
2.7. If Elevation Direct discovers that Your Material violates the terms and conditions of this Agreement or applicable legal agreements, laws, regulations or policies, You agree that Elevation Direct may remove Your Material from Your Account at its sole discretion.
2.8. Elevation Direct makes no promises as to the availability of Your Material or Elevation Direct One or the functionality of Elevation Direct One.
Your Use of Elevation Direct One
3.1. In order to access Elevation Direct One, You will be required to provide information about yourself such as (but not limited to) your name, address, and billing details. You agree that any such information you provide to Elevation Direct will always be accurate, correct, and up to date.
3.2. You agree that You are solely responsible for (and that Elevation Direct has no responsibility to You or to anyone else for) your use of Elevation Direct One, Your Material, your breach of any obligations under the terms and conditions of this Agreement, and for the consequences (including loss or damage of any kind which you or Elevation Direct may suffer) of any breach of such obligations. You further agree to not use Elevation Direct One to store, host, or send unsolicited electronic messages. You further agree to not use Elevation Direct One to transmit any viruses, worms, or malicious content.
3.3. You agree to use Elevation Direct One only according to instructions and documentation that Elevation Direct provides and only for purposes that are permitted by this Agreement and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
3.4. If you are using third-party data in Elevation Direct One, You agree that You have the right to use that third-party data, and further agree to provide Elevation Direct with the information required to access that data on Your behalf for use in Elevation Direct One.
3.5. You agree to comply with all applicable export and import controls, including, but not limited to, the United States Department of Commerce’s Export Administration Regulations and sanctions programs administered by the United States Treasury Department’s Office of Foreign Assets Control. By using Elevation Direct One, you represent and warrant that you are not prohibited from receiving exports, imports or services under United States or other applicable laws.
3.6. You agree not to access (or attempt to access) Elevation Direct One by any means other than through the interface made available by Elevation Direct, unless you have been specifically allowed to do so in a separate agreement with Elevation Direct. You specifically agree not to access (or attempt to access) Elevation Direct One through any automated means (including use of scripts, crawlers, or similar technologies).
3.7. You agree that you will not: (a) engage in any activity, or (b) use any of Your Material in a way that interferes or disrupts Elevation Direct One or any servers, networks, or websites operated by Elevation Direct or any third party.
3.8. You agree that Elevation Direct owns all right, title, and interest in and to Elevation Direct One, including without limitation all applicable Intellectual Property Rights. “Intellectual Property Rights” means any and all rights existing under patent, copyright, trade secret and trademark law, unfair competition law, and any and all other proprietary rights worldwide.
3.9. You shall not (and You shall not permit anyone else to): (a) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from Elevation Direct One; (b) take any action to circumvent or defeat the security or usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management or forward-lock functionality) on Elevation Direct One; (c) use Your Material to access, copy, transfer, transcribe or retransmit anything in violation of any law or the rights of others; or (d) remove, obscure, or alter Elevation Direct’s copyright notices, trademarks, or other proprietary rights notices.
4.1. Elevation Direct may provide you with a mechanism to provide feedback, suggestions, and ideas about Elevation Direct One (“Feedback”). You agree that Elevation Direct may, in its sole discretion, use the Feedback in any way, including but not limited to future modifications of Elevation Direct One, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant Elevation Direct a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, reproduce, modify, create derivative works from, perform, distribute, and display for any purpose any information You provide to Elevation Direct in the Feedback.
5.1. Elevation Direct One may contain technologies that monitor, record and report to Elevation Direct information regarding the use of Elevation Direct One, including but not limited to information concerning the devices used to access Elevation Direct One; and the frequency, type and manner of use of Elevation Direct One (collectively, “Usage Data”). You agree that Elevation Direct may, in its sole discretion, collect and use Usage Data to support, maintain, and improve Elevation Direct One, and to enforce Elevation Direct’s rights under the Agreement. To the extent any Usage Data is personal information within the meaning of applicable law, You hereby: (a) consent to Elevation Direct’s collection, use and disclosure of such Usage Data for these purposes; and (b) represent and warrant that You have obtained the consent of any individual to whom such Usage Direct Data relates to Elevation Direct’s collection, use and disclosure of such Usage Data for these purposes, or that the consent of any such individuals is not required to be obtained under applicable law.
6.1. During the Subscription Term, Elevation Direct One is subject to the support terms set forth in the Elevation Direct One Support policy found at www.elevationdirect.com/support. Indemnification
Your Password and Account Security
7.1. You are responsible for maintaining the confidentiality of passwords associated with Your Account and agree to be responsible to Elevation Direct for all activities that occur under Your Account, whether performed directly by you or by others.
7.2. If you become aware of any unauthorized use of your password or of Your Account, You
shall notify Elevation Direct immediately at firstname.lastname@example.org.
Privacy and your Personal Information
8.2. You agree that Elevation Direct may use Your Material, including any personal information you provide, in accordance with Elevation Direct’s privacy policies.
8.3. Elevation Direct utilizes industry standard technology resources to maintain its high security standards. You understand and agree that Your Material, including any personal information you provide, may be stored in countries outside of Your country.
9.1. To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless Elevation Direct, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney fees) arising out of or accruing from your use of Elevation Direct One, Your Material or your violation of the terms and conditions of this Agreement.
Subscription Term & Fees Payment
10.1. Subscription Term. Subscription Term. Unless otherwise specified on the applicable Ordering Document, each Subscription Term shall begin on the Effective Date of the applicable Ordering Document and continue for twelve (12) months thereafter. At the end of the Subscription Term, the subscription shall automatically renew for another 12-month term at Elevation Direct’s then-current rates, unless Customer provides notice to Elevation Direct 30 days prior to the end of the Subscription Term of its intent not to renew. If Customer does not renew its subscription, Customer’s access to Elevation Direct One will terminate at the end of the then-current Subscription Term.
10.2. Setup Fees. For each Elevation Direct One subscription service, the Per Campaign Setup Fee shall be $250 unless set forth otherwise in the Ordering Document.
10.3. Subscription Fees. Subscription fees are specified for each subscription service as set forth in the Ordering Document.
10.4. Weekly Minimum Billing Amount. For each Elevation Direct subscription service, the Per Campaign Weekly Minimum Billing Amount is as set forth in the Ordering Document.
10.5. Campaign Retirement. You may retire one or more campaigns during the Subscription Period with 7 days notice to Elevation Direct, provided however that Your Account has not been terminated and that You have at least one campaign which remains active during the Subscription Term. A fee of $100 applies to reactivate a retired campaign.
10.6. You shall on the Effective Date provide to Elevation Direct valid, up-to-date and complete credit card details or other payment method approved by Elevation Direct. Elevation Direct may, in its sole discretion, agree to permit You to pay applicable fees pursuant to invoices issued by Elevation Direct. If You provide your credit card or other payment method details to Elevation Direct, You hereby authorize Elevation Direct to bill such credit card or other payment method on a weekly or a biweekly basis on the Billing Day of Week set forth in the Ordering Document. If You are paying pursuant to invoices issued by Elevation Direct, payment must be made within thirty (30) days of the due date. All fees are non-refundable. Elevation Direct’s fees are exclusive of, and Customer is required to pay, any sales, use, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Elevation Direct. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
10.7. Start of Invoicing. Elevation Direct shall start charging for the provision of Elevation Direct One subscription services starting on the Acceptance Date for each campaign.
10.8. Adding Permitted Users. (a) Customer may increase its number of Permitted Users during a Subscription Term at rates consistent with those in the applicable Ordering Document (unless the parties agree to other rates). The increase will be documented in an Ordering Document or amended Ordering Document, and invoices for additional Permitted Users will be payable according to Section 10.3. For clarity, Customer may not reduce Permitted Users during a Subscription Term. (b) Customer understands that Elevation Direct may monitor Customer’s use of Elevation Direct One in order to verify that Customer has not exceeded its permitted number of Permitted Users. If Elevation Direct becomes aware of any such excess usage, then Customer will pay for the excess usage and for any ongoing excess usage under the same terms as in subsection (a) above.
10.9. Suspension of Services. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Elevation Direct reserves the right to suspend Customer’s access to Elevation Direct One without liability to Customer until such amounts are paid in full.
Term & Termination
11.1. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Agreement terms and conditions.
11.2. Termination for Cause. Either party may terminate this Agreement (including all related Ordering Documents) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within seven (7) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
11.3. Elevation Direct may at any time, terminate this Agreement and Your Account upon ninety (90) days’ prior notice to You.
11.4. Penalties for Early Termination. If You terminate this Agreement and Your Account prior to the end of the Subscription Term or if Elevation Direct terminates this Agreement and Your Account pursuant Section 11.2 (Termination for Cause), Elevation Direct may charge You, for each campaign specified in the applicable Ordering Document, a penalty equal to the Per Campaign Weekly Minimum Billing Amount multiplied by the number of weeks remaining in the Subscription Term.
11.5. In the event Your Account is terminated: (a) You will not be able to access Your Account or Your Material; and (b) You agree that Elevation Direct shall have no obligation to maintain or provide You access or deliver to You any of Your Material. Elevation Direct retains the right to delete Your Account and Your Material in its systems or otherwise in its possession or under its control at the end of the ninety (90)-day period following termination.
11.6. Notwithstanding termination of this Agreement, the following sections will remain in force against you and Elevation Direct: 1, 2, 4.1, 5.1, 9.1, 11.5, 11.6 and 12-15.
DISCLAIMER OF WARRANTIES
12.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF ELEVATION DIRECT ONE AND ANY CONTENT OBTAINED THROUGH ELEVATION DIRECT ONE IS AT YOUR SOLE RISK IMPLIED, WARRANTIES OF FITNESS FOR HIGH RISK ACTIVITIES. AND THAT ELEVATION DIRECT ONE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. ELEVATION DIRECT DOES NOT WARRANT THAT ELEVATION DIRECT ONE IS FREE OF BUGS, VIRUSES, IMPERFECTIONS, ERRORS, OR OMISSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELEVATION DIRECT FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO ELEVATION DIRECT ONE AND ALL OF YOUR MATERIAL, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF AVAILABILITY, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
12.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BECAUSE USE OF ELEVATION DIRECT ONE AND ALL OF YOUR MATERIAL IS AT YOUR SOLE RISK, ELEVATION DIRECT IS NOT RESPONSIBLE FOR AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTERS, NETWORKS, MOBILE AND OTHER DEVICES, AND LOSS OF DATA THAT MAY RESULT FROM SUCH USE.
12.3. YOU EXPRESSLY UNDERSTAND AND AGREE THAT ELEVATION DIRECT ONE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF ELEVATION DIRECT ONE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). ELEVATION DIRECT EXPRESSLY DISCLAIMS ALL, WHETHER EXPRESS OR IMPLIED, WARRANTIES OF FITNESS FOR HIGH RISK ACTIVITIES.
LIMITATION OF LIABILITY
13.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT ELEVATION DIRECT AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT YOU MAY INCUR THROUGH USE OF ELEVATION DIRECT ONE AND ANY OF YOUR MATERIAL ACCESSED OR OBTAINED FROM ELEVATION DIRECT ONE, WHETHER OR NOT ELEVATION DIRECT OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. ELEVATION DIRECT’S SOLE LIABILITY TO YOU FOR DIRECT DAMAGES ARISING OUT OF YOUR RELATIONSHIP WITH ELEVATION DIRECT BECAUSE YOU HAVE ACCESSED OR USED ELEVATION DIRECT ONE IS LIMITED TO TWO HUNDRED DOLLARS (US$200.00)
Changes to the Elevation Direct One
14.1. Elevation Direct may change, revise, update, or otherwise modify the features and functionality of any and all Elevation Direct One versions and/or editions. You may reject these changes by discontinuing use of Elevation Direct One and terminating Your Account.
14.2. You understand and agree that if You use Elevation Direct One after such changes, You will be deemed to have agreed to the changes and your continued use of Elevation Direct One will be subject to and governed by this Agreement.
15.1. This Agreement, along with anything referenced herein, constitute the entire legal agreement between You and Elevation Direct and govern your use of Elevation Direct One. This Agreement completely replace any prior agreements between You and Elevation Direct in relation to Elevation Direct One.
15.2. As a user of Elevation Direct One, You assume the responsibility for the selection of Elevation Direct One as being appropriate for Your purposes. You understand and agree that: (a) You are solely responsible for the content and accuracy of all reports, invoices and documents prepared with Elevation Direct One; (b) using Elevation Direct One does not relieve You of any professional obligation concerning the preparation and review of such reports, invoices and documents; (c) You do not rely upon Elevation Direct or Elevation Direct One for any advice or guidance regarding the appropriate tax treatment of items reflected on such reports, invoices or documents; (d) You will review any calculations made by using Elevation Direct One and satisfy Yourself that those calculations are correct; and (e) Elevation Direct’s customer support is designed to offer technical support for issues regarding the features and functionality of Elevation Direct One in the supported browser environments only.
15.3. You understand and agree that some third party products marketed, integrated, and/or available with Elevation Direct One may be subject solely to terms and conditions of the respective third party product and not to this Agreement. You acknowledge and agree that under no circumstances shall Elevation Direct be responsible or liable in any way for the availability and/or functionality of services or products offered, or the content located on or through, any such third party product. You further acknowledge and agree that under no circumstances shall Elevation Direct be responsible or liable in any way, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such functionality, content, goods or services available on or through any such third party product. Elevation Direct may withdraw access to such third party products via Elevation Direct One at any time without notice.
15.4. You authorize Elevation Direct to send You information about Elevation Direct products and services, including but not limited to marketing and promotional material, via facsimile, email, telephone, and other reasonable means. If you do not wish to receive information from Elevation Direct, please contact Customer Service.
15.5. You agree that any failure by Elevation Direct to exercise or enforce any legal right or remedy contained in this Agreement (or which Elevation Direct has the benefit of under any applicable law), will not constitute a waiver of Elevation Direct’s rights and that those rights or remedies will still be available to Elevation Direct.
15.6. If a court finds that any provision of this Agreement (which includes any updated terms and conditions) is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
15.7. This Agreement and your relationship with Elevation Direct under this Agreement shall be governed by the laws of the State of Nevada without regard to its conflict of laws provisions. You and Elevation Direct agree to submit to the exclusive jurisdiction of the courts located within Clark County, Nevada to resolve any legal matter arising from this Agreement and your use of Elevation Direct One. Notwithstanding the foregoing, you agree that Elevation Direct shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. In addition, you agree that any cause of action or claim will be litigated individually and that you will not consolidate or seek class treatment for any claims.
15.8. Elevation Direct One is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government (including its agencies and instrumentalities) is subject to restrictions set forth in 48 CFR 52.227-19 or DFARS 252.227-7014, as applicable. The manufacturer is Elevation Direct located at 3753 Howard Hughes Pkwy, Suite 200, Las Vegas, Nevada 89169.