SERVICES TERMS AND CONDITIONS
These Services Terms and Conditions (“Terms and Conditions”) govern the delivery of Services pursuant to a Digital Marketing Services Order (“DMSO”) entered into between WSI Elevated Digital, Inc. (“Elevated Digital”) and the customer identified in the DMSO (the “Customer”). The DMSO and the Terms and Conditions are collectively referred to as the “Agreement.”
1. Services. Elevated Digital shall provide to Customer the services (the “Services”) set forth in the DMSO.
2. Customer Obligations
2.1 Project Manager. Customer shall designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement and who will have the authority to act on behalf of Customer in connection with matters pertaining to this Agreement, with such designation to remain in force unless and until a successor is appointed.
2.2 Response. Customer shall require that the Customer Project Manager respond promptly to any reasonable requests from Elevated Digital for instructions, information or approvals required by Elevated Digital to provide the Services.
2.3 Cooperation. Customer shall cooperate with Elevated Digital in its performance of the Services and provide access to Customer’s premises, employees and equipment as required to enable Elevated Digital to provide the Services.
2.4 Consents. Customer shall take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Elevated Digital’s provision of the Services.
2.5 Use of Services. Customer shall not use, and shall not permit its employees or agents to use, the Services for any illegal purpose.
3. Fees and Expenses
3.1 Fees. In consideration of the provision of Services by Elevated Digital and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable DMSO. Unless otherwise provided in the DMSO, the fee will be due and payable within 10 days from the date of the invoice. All charges invoiced to Customer shall be deemed valid unless Customer disputes such charges in writing within 90 days after the invoice is sent by Elevated Digital to Customer. Recurring charges shall be invoiced monthly, beginning on the billing start date, installation charges shall be invoiced when installation commences, and other non-recurring charges shall be invoiced when incurred. Billing for partial months is prorated based on average days per month.
3.2 Expenses. Unless otherwise agreed to in the DMSO, Customer shall reimburse Elevated Digital for all reasonable out of pocket expenses incurred in performance of the Services.
3.3 Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer pursuant to this Agreement; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Elevated Digital’s income, revenues, gross receipts, personnel or real or personal property or other assets.
3.4 Late Payments. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1 1/2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Elevated Digital for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In the event Customer fails to pay undisputed invoices when due two or more times, Elevated Digital may require a security deposit in the amount of one month of recurring fees and charges as a condition to providing continued Service. In addition to all other remedies available under this Agreement or at law (which Elevated Digital does not waive by the exercise of any rights hereunder), Elevated Digital shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due and such failure continues for five (5) days following written notice of the failure to pay.
4. Elevated Digital Limited Warranty and Limitation of Liability
4.1 Elevated Digital Warranties. Elevated Digital warrants that it shall use reasonable efforts to perform the Services: (a) in accordance with the terms and subject to the conditions set out in the respective DMSO and this Agreement, and (b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
4.2 Remedy for Breach of Warranties. Elevated Digital’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of the warranties in section 4.1 shall be for Elevated Digital to use reasonable commercial efforts to promptly cure any such breach. The foregoing remedy shall not be available unless Customer provides written notice of such breach within ten (10) days after delivery of the Services giving rise to the claim.
4.3 Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, INCLUDING ANY RELATED SOFTWARE AND EQUIPMENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND OTHERWISE WITHOUT WARRANTY BY ELEVATED DIGITAL OR ITS THIRD PARTY PROVIDERS OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ELEVATED DIGITAL AND ITS THIRD PARTY LICENSORS AND PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT. ELEVATED DIGITAL EXERCISES NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR THE INFORMATION OR CONTENT ACCESSIBLE ON THE INTERNET OR FOR THE PRODUCTS OR SERVICES OF THIRD PARTIES THAT MAY BE INCLUDED IN THE SERVICES.
FOR CLARIFICATION PURPOSES, AND WITHOUT LIMITATION, THERE IS NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT CUSTOMER’S ACCESS TO THE SAME WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, AND NEITHER ELEVATED DIGITAL NOR ITS THIRD PARTY PROVIDERS WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY, CAPABILITY, UPTIME, CURRENTNESS OR OTHERWISE. CUSTOMER WILL NOT HOLD ELEVATED DIGITAL AND/OR IT’S THIRD PARTY PROVIDERS RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF THE SERVICES. ELEVATED DIGITAL IS NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, CUSTOMER OR STORED BY CUSTOMER VIA THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ELEVATED DIGITAL AND/OR ITS THIRD PARTY PROVIDERS.
4.4 Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER ELEVATED DIGITAL NOR ITS THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS SHALL BE LIABLE TO CUSTOMER (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND — INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS AND LOSS OF DATA — IN ANY WAY RELATED TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT OR AS A RESULT OF NEGLIGENCE OR BREACH OF STATUTORY DUTY), REGARDLESS OF WHETHER THE PARTY THAT IS LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL ELEVATED DIGITAL’S LIABILITY FOR A CLAIM UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO OR RECEIVED BY ELEVATED DIGITAL UNDER THE APPLICABLE SOW FROM WHICH THE CLAIM AROSE DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
5. Customer Representations and Warranties. In addition to any other representations and warranties set forth in this Agreement, Customer represents, warrants and covenants that: (i) It is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its incorporation/organization/formation; (ii) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (iii) It has the full right, power and authority to enter into this Agreement; and (iv) it is now and through the Term shall remain in compliance with all applicable laws.
6. Customer Indemnification. In addition to any other indemnification obligations under this Agreement, Customer shall defend, indemnify and hold harmless Elevated Digital, and its officers, directors, employees, agents, Affiliates, successors and permitted assigns, and third party providers and licensors (collectively, “Elevated Digital Indemnified Party”), from and against any and all claims and losses arising out of or resulting from any third-party Claim alleging: (i) breach by Customer of any representation, warranty, covenant or other obligations set forth in this Agreement; (ii) negligence or other fault of Customer in connection with this Agreement; and (iii) that any Customer materials or intellectual property or Elevated Digital’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party.
7. Website Hosting and Support. To the extent the Services include website hosting and support, additional terms and conditions relating to such work, located at www.wsielevateddigital.com/websiteterms, shall apply and are incorporated into this Agreement (the “Website Terms”). Customer specifically understands and agree that Elevated Digital shall not be liable for any costs incurred, or compensation or loss of earnings suffered, as a result of or related to the unavailability or malfunctioning of the website, its servers, software or operation, and Customer agrees to indemnify Elevated Digital and hold it harmless from and against any such costs or losses. Customer shall at all times retains responsibility and control over maintaining and supporting the website.
8. Website Design and Development. To the extent the Services include website design and development, additional terms and conditions relating to such work, located at www.wsielevateddigital.com/websiteterms, shall apply and are incorporated into this Agreement (the “Website Terms”). Customer understands and agrees that the website and any graphics and programming code remain the property of Elevated Digital until all outstanding accounts are paid in full. Elevated Digital represents and warrants to Elevated Digital that any Customer Materials, including text, graphics, photos, designs, trademarks or other artwork furnished by Customer for inclusion on the website are owned by Customer, or that you permission from the rightful owner to use them, and Customer agrees to indemnify and hold Elevated Digital and its third party providers harmless against any and all claims to the contrary.
9. Search Engine Optimization. Customer shall at all times remain responsible for the content of its search engine listings, including any Google Places (Maps) and all other search engine results listings. Elevated Digital shall provide Customer with recommended content and work to improve the position of Customer’s web site listing and maps listing in the search engine results, but has not guaranteed and cannot guarantee that Customer’s listing will show up in the results. Furthermore, Customer acknowledges that the search engines control whether or not a map or other listing appears in the results and in what position. Customer specifically understand and agrees that Elevated Digital shall be not liable for any costs incurred, or compensation or loss of earnings suffered, as a result of or related to Customer’s listing moving lower on the results page or disappearing entirely from the search engine results, and Customer hereby agrees to indemnify Elevated Digital and its third party providers harmless from and against such claims or any such costs or losses.
10. Online Marketing and Advertising. Customer shall at all times remain responsible for the content of any advertising, promotional and other materials displayed or used in connection with the Services contemplated by this Agreement, and you agree to indemnify and hold Elevated Digital and its third party suppliers harmless from and against any and all claims by regulatory or legal authorities or third parties arising under or relating to that content.
11. Intellectual Property. Except as otherwise provided, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Elevated Digital in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials incorporated in the Deliverables, shall be owned by Elevated Digital. Provided full payment has been received by Elevated Digital, Elevated Digital hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
12. Customer Materials License. Customer hereby grants to Elevated Digital the limited, royalty-free, non-exclusive right and license to the Customer Materials solely as necessary to incorporate the Customer Materials into the deliverables as described in the DMSO. “Customer Materials” means, collectively, all content and all other information in any form or media, including but not limited to documents, data, know-how, ideas, specifications, software code and other materials provided to Elevated Digital by or on behalf of Customer, whether or not the same: (a) are owned by Customer, a third party or in the public domain; or (b) qualify for or are protected by any intellectual property rights.
13.1 Confidential Information. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
13.2 Non-Disclosure. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
14. Term, Termination and Survival.
14.1 Term. This Agreement shall commence as of the date set forth on the DMSO and shall continue for the period set forth in the DMSO, unless sooner terminated as set forth below. The Agreement, and the Services under the DMSO, shall automatically renew for successive terms unless either party provides written notice of its intent to terminate no later than thirty (30) days prior to the upcoming expiration date.
14.2 Termination for Default. Either Party may terminate this Agreement or any SOW, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
(a) Materially breaches this Agreement or the applicable SOW, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach. In the event Elevated Digital terminates the Agreement pursuant to this section, it shall not have any obligation to refund any fees paid in advance by Customer.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
14.3 Termination for Convenience. Notwithstanding the above, unless otherwise provided, either party may terminate any monthly recurring services under the DMSO, and this Agreement, at any time, for any reason, upon thirty (30) days written notice to the other party.
15.1 Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained in the Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
15.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the party giving the Notice has complied with the requirements of this Section.
15.3 Independent Contractor. Elevated Digital shall be an independent contractor with respect to the performance of Services under this Agreement. Elevated Digital and Customer agree that nothing in this Agreement shall be (i) construed as constituting Elevated Digital as other than an independent contractor of Customer for any purpose whatsoever or (ii) deemed to create an employer-employee, partnership, franchise or joint venture relationship between Elevated Digital and Customer.
15.4 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.5 Non-Solicit/Non-Hire. During the term of this Agreement, and for a period of one (1) year following the expiration or termination of this Agreement, Customer will not, directly or indirectly, (i) solicit, employ, offer employment to, or otherwise engage as an employee, independent contractor, or otherwise, any individual who is or was an employee of Elevated Digital at any time during the term, or in any manner induce or attempt to induce any employee of Elevated Digital to terminate their employment with Elevated Digital, or (ii) materially interfere with the relationship of Elevated Digital with any individual who at any time during, prior to, or after the Effective Date was an employee of Elevated Digital.
15.6 Amendments. No amendment to or modification of this Agreement or any DMSO is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
15.7 Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.8 Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Elevated Digital. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
15.9 Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
15.10 No Third-Party Beneficiaries. Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.11 Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
15.12 Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, in any forum other than the state or federal courts located in the City and County of Denver, Colorado. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
15.13 Waiver of Jury Trial. Each party acknowledges that any controversy that may arise under this Agreement, including exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
15.14 Force Majeure. Elevated Digital shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Elevated Digital including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.