Terms and Conditions
In addition to terms defined elsewhere in this Agreement, the terms set forth immediately below have the following meanings.
“Application” means any mobile application of Customer into which Elevatix may be integrated.
“Customer Data” means the data concerning the activities of users of your application that is collected through the use of the Services.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Documentation” means the documentation, instructions, user guides, and other documents made available by Elevatix that relate to the Services and Software.
“Elevatix SDK” means the underlying software development kit provided by Elevatix for Elevatix services.
“Services” means the content, tools, services, software application, and products provided by Elevatix through its website or any other Website operated by Elevatix and including, without limitation, the Elevatix SDK, Recordings, Reports, and Documentation.
“Term” means the term of this Agreement, which commences on the date upon which You enter into this Agreement and continues until terminated by You or Elevatix.
2. License Grant
Subject to Customer’s compliance with the terms and conditions of this Agreement (as a condition to the grants below), Elevatix grants Customer, and Customer accepts, a personal, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Services (as such Services may be modified, revised and updated in accordance with this Agreement) for collecting and analyzing user behavior on Customer’s app(s) for Customer’s own internal business purpose.
3. Access to Services
During the Term, and subject to the terms and conditions of this Agreement, Elevatix will use commercially reasonable efforts to provide Customer with access to the Services. Customer will cooperate with Elevatix, as requested, to facilitate the initiation of Customer’s access and use of the Services. Customer will identify a username and password that will be used solely by Customer to access and use Customer’s account on the Services. Customer will not share its username or password with any third party and will be responsible and liable for the acts or omissions of any person who accesses the Services via such account. Customer will (a) provide accurate, current, and complete information when setting up such account; (b) maintain and promptly update any account information; (c) maintain the security of any password and accept all risks of unauthorized access to its account; and (d) promptly notify Elevatix if it discovers or otherwise suspects any security breaches related to such account.
4. Customer Data
Customer retain full ownership of your Customer Data.
Customer hereby allows Elevatix to collect, store and process your Customer Data.
Customer agrees that it will not provide any Sensitive Data to Elevatix. Elevatix shall use and maintain.
Elevatix will not use or disclose your Customer Data to any third parties except:
if required in limited circumstances, including compelled by law
if it is part of anonymized aggregated data (“Aggregated Data”).
This right to use Anonymized Data will survive the termination of this Agreement to a limited number of Elevatix employees or contractors as required to operate, develop or improve the Services.
In compliance with this policy, you must disclose to your End-Users the usage of a third-party technology for data collection and comply will all applicable laws, rules, and regulations.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose 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 Elevatix includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Elevatix to enable the provision of the Services (“Customer Data”).
The Receiving Party agrees:
to take reasonable precautions to protect such Proprietary Information, and
not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any third person 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 document
is or becomes generally available to the public, or
was in its possession or known by it prior to receipt from the Disclosing Party,
was rightfully disclosed to it without restriction by a third party, or
was independently developed without the use of any Proprietary Information of
the Disclosing Party or
is required to be disclosed by law.
Customer shall not directly or indirectly:
rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party,
reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Elevatix Service, except as permitted by law,
access the Elevatix Service for the purpose of building a competitive product or service or copying its features or user interface;
modify, remove or obstruct any proprietary rights statement or notice contained in the Services;
interfere with any license key mechanism in the Service or otherwise circumvent mechanisms in the Service intended to limit your use,
attempt to gain unauthorized access to the Services or its related systems or networks;
provide false identity information to access or use the Services;
publicly disseminate information regarding the performance of the Products
7. Ownership and Feedback
Ownership: Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale.” Elevatix and its licensors have and retain all rights, title, and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Elevatix.
Feedback: From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Elevatix, including sharing Your Modifications or in the course of receiving Support and Maintenance (collectively “Feedback”). Elevatix may, in connection with any of its products or services, freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Elevatix’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
8. Warranties & Disclaimer
8.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
8.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND ELEVATIX AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. ELEVATIX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ELEVATIX. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Elevatix NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
The Site and/or Services may include links to certain websites, materials, or content developed by Third Parties. Elevatix has not reviewed all the sites linked to its Site and/or Services and shall not be responsible for the contents of any such linked material. The inclusion of any link does not imply endorsement by Elevatix of such material, and Elevatix shall not be held liable in respect of any links contained therein. Use of any such linked material shall be at Your own risk. Elevatix reserves the right, in its sole and absolute discretion, to discontinue links to any other material at any time and for any reason.
Unless You specifically withdraw Your consent to this clause by sending an email at legal@Elevatix.com, You hereby acknowledge and consent to Elevatix making use of any of Your marks, logos and trade names to identify You as Elevatix’s customer on Elevatix’s Site and/or Services, in addition to any other marketing material.
11. Limitation of Liability
ELEVATIX WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE ELEVATIX OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. IN ANY EVENT ELEVATIX’s TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE FOR 1 MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
12.1 Claim against Customer
Elevatix shall defend, indemnify and hold harmless Customer (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from: (a) any breach of Elevatix’s obligations, representations or warranties herein; or (b) a claim that the Code and/or Services infringe the intellectual property rights of a third party. This Section 12.1 sets forth Elevatix’s sole obligations and Company’s sole remedies for any claim that the Code and/or Services infringe the intellectual property rights of a third party.
Notwithstanding the foregoing, Elevatix shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Code or Services not in compliance with this Agreement or applicable law, (b) the combination of the Code or Services with any code or services not provided by Elevatix, (c) the modification of any Code or Services by any party other than Elevatix or (d) the use of any Code that is not the most up-to-date Code.
If the Services shall be the subject of an infringement claim, or Elevatix reasonably believes that the Services shall be the subject of an infringement claim, Elevatix may terminate this Agreement with written notice if modification of the Services to be non-infringing is not reasonably practical.
12.2 Claim Against Elevatix.
Customer shall defend and indemnify Elevatix (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Elevatix may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from: (a) any breach of Customer’s obligations, representations or warranties herein; or (b) any use or distribution of the Customer’s Application in violation of this Agreement or applicable law or regulations.
The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section 12 except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
13. Terms and Renewal
Subscription Plan: The prices, features, and options of the Elevatix Services depend on the Subscription Plan selected as well as any changes instigated by Customer. Elevatix does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
Renewal Term: Unless Elevatix is notified in writing at least three business (3) days before the end of the conclusion of Your current Term (or any subsequent Renewal Term) that You do not intend to renew Your subscription plan, You will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Term (the “Renewal Term”). Any written notice of Your intention not to renew shall be provided to the following email address: support@Elevatix.com. The email must come from the registered Elevatix Account owner.
Recurring Charges: When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. Customer must promptly notify us of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES ELEVATIX OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY, QUARTERLY or YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE ELEVATIX SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term.
No Refunds: Customer will timely pay Elevatix all fees associated with its Subscription Plan, Account or use of the Elevatix Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS.
Late Fees & Collection Costs: If Elevatix does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined, and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Elevatix to collect any amount that is not paid when due. Elevatix may accept payment in any amount without prejudice to Elevatix’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Elevatix may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from Elevatix.
14. Privacy / Data Protection
Elevatix prohibits you from using the Services to collect, track or record any Personally Identifiable Information. You must identify all fields where Personally Identifiable Information may be entered and must not allow the collection of any data from such fields.
You acknowledge that You shall be solely and exclusively responsible for taking all the necessary measures on Your application and for obtaining any consent that You are legally obliged to obtain from Your users/customers.
By accepting the terms contained within this Agreement, You acknowledge, represent, and warrant that You shall comply with all applicable laws, including but not limited to Data protection and privacy laws and that You shall indemnify Elevatix Indemnified Parties against any Third Party claims related to violation of such applicable laws in the use of the Service.
Entire Agreement: This Agreement constitutes the entire agreement and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties about the subject matter of this Agreement.
Amendments: Elevatix may amend this Agreement from time to time. If Elevatix makes a change to this Agreement that, in its sole discretion, is material, Elevatix will notify Customer by providing notice of the change through the Services, the SDK, or at the email address that Customer provided to Elevatix upon signing up to access the Services. If Customer does not agree to the modified terms of the Agreement, Customer shall notify Elevatix in writing within thirty (30) days, after which this Agreement shall immediately terminate and the Elevatix Entities shall have no further responsibility or liability to Customer.
Assignment: Neither Party may assign or delegate any rights or obligations under the Agreement without the prior written consent of the other party. Notwithstanding the foregoing, both parties may assign their rights and obligations under the Agreement in connection with a consolidation, merger, acquisition, or sale of substantially all of their assets, shares, or activities without the prior written consent of the other party.
Severability: If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Force Majeure: If either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party, and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Relationship: The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint ventures, or agents. Except as expressly agreed by the parties, neither party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose, and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
No Exclusivity: Nothing in this Agreement restricts a party’s right to contract with any third party to provide products and/or services similar to or identical to the Services provided under this Agreement.
Modification and Waiver: No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement.
Compliance with Laws: Customer agrees that it will comply with all laws, administrative regulations, and executive orders relating to the control of imports and exports of commodities and technical data, use or remote use of software and related property, or registration of this Agreement that may apply in the United States or in any other jurisdiction in which the Services will be located or from which the Services will be accessed under this Agreement, including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of State, and the Enhanced Proliferation Control Initiative. Customer will not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any part of the Services or Confidential Information to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons, as each may be amended from time to time.
Governing Law: This Agreement shall be governed by the laws of the State of Delaware, and the competent courts in the city of Delaware shall have exclusive jurisdiction to hear any disputes arising hereunder.