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Terms and Conditions

These Terms and Conditions (“Terms”) are made part of the Agreement between Ace-Up, Inc. (“Ace-Up”) and the Customer listed in the Order which references these Terms.  These Terms will govern the use and provision of any Services purchased by Customer as described in any Order.  Any terms not defined herein have the meaning given to them in the applicable Order.

Definitions 

  1. Access, Rights, Restrictions and Security   
  1. Access Grant to Ace-Up Platform.  Subject to Customer’s compliance with the terms and conditions contained in this Agreement, including the restriction on the number of Users set forth in any Order Form, Ace-Up grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable right to allow the number of Users set forth in the applicable Order to access and use the Ace-Up Platform during the Term (as defined below). Ace-Up agrees to use commercially reasonable efforts to make the Ace-Up Platform available to Customer, and its Users, in accordance with the Service Level Agreement. All Users are subject to Ace-Up’s end user license (“Ace-Up EULA”).
  2. Access Credentials. Customer will safeguard, and ensure that all Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer will notify Ace-Up immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.
  3. Coaching Service. Coaching Services will be provided by Coaches, and not Ace-Up. Coaching Services are intended to facilitate each User’s professional growth and other goals, but are not guaranteed in any way. Notwithstanding anything to the contrary, Coaching Services are not a mental health, therapy, or any other type of regulated service or a service requiring a professional or other license. Coaching Services do not create any legal relationship or duty between Ace-Up and the User, and are solely provided to and for the Customer’s benefit. Customer and Users are solely responsible for determining if, whether and how Coaching Services are necessary or appropriate for their situation and whether to follow any coaching suggestions or advice.  
  4. Customer Restrictions. During the Term (as defined in Section 9) and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s customers; (b) use or demonstrate the Services in any other way that is in competition with Ace-Up; (c) reverse engineer, disassemble or decompile the Ace-Up Platform or attempt to derive the source code or underlying ideas or algorithms of any part of the Ace-Up Platform (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupt its integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations. 
  5. Customer Obligations.    Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any User to access the Services from the Internet.  Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Ace-Up promptly of any such unauthorized use known to Customer
  1. Confidential Information.
  1. Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each Recipient agrees as follows: (a) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and independent contractors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”) and (b) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein.  Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.  
  2. Exceptions. The provisions of Section 2.1, will not apply to Confidential Information that: (a) becomes generally available to the public through no fault of the Recipient; (b) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (c) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (d) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient who had no access to the Confidential Information. Notwithstanding Section 3.1, each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order.
  1. Intellectual Property Rights.
  1. Customer Content Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.  Customer will obtain all third-party licenses, consents and permissions needed for Ace-Up to use the Customer Content to provide the Services. Customer grants to Ace-Up, on behalf of itself and its Users, a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services.  Except for the limited licenses granted to Ace-Up in any Customer Content, as between Customer and Ace-Up, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary herein, Customer agrees that Ace-Up has the right to collect, use and analyze any deidentified information derived from the Customer Content (collectively, the “Deidentified Data”) for Ace-Up’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Ace-Up offerings.  Ace-Up may disclose Deidentified Data solely in aggregate form in connection with its business.
  2. Ace-Up Platform. Except for the limited access grant provided to Customer in this Agreement, Ace-Up reserves all right, title and interest in its intellectual property and business, including the Services, Documentation, and Ace-Up trademarks.  Unless otherwise expressly set forth in an Order, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order (including any modifications and improvements to any Services pursuant Section 4.3 or any intellectual property developed pursuant to Section 4.4 below), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Ace-Up.
  3. Continuous Development. Customer acknowledges that Ace-Up may continually develop, deliver and provide to Customer on-going innovation to the Ace-Up Platform in the form of new features, functionality, and efficiencies. Accordingly, Ace-Up reserves the right to modify the Services, or any Ace-Up Platform, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Ace-Up adds additional functionality to a particular Service, Ace-Up may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Ace-Up Platform that Ace-Up makes generally available (without such features) without paying additional fees.
  4. Professional Services; Training and Support.  Customer may request that Ace-Up provide certain Professional Services related to Customer’s use of the Ace-Up Platform.  Excluding those agreed between the parties in the Order or a separate statement of work, Ace-Up will have no obligation to provide or perform such services for or on behalf of Customer.
  5. Feedback.  Ace-Up in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to Ace-Up, including such comments and suggestions of Users, in connection with its access to and use of the Services (all comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”).  Customer hereby grants Ace-Up, on behalf of itself and its Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Ace-Up products and services.
  1. Data Privacy and Security
  1. Customer Content. When we process your Customer Content in order to provide our Services to you, we process such Personal Data as your data processor, on your behalf and pursuant to your instructions and in accordance with the Ace-Up Data Processing Agreement available at: https://aceup.com/dpa.
  2. Coaching Content.  Customer acknowledges that with respect to the Coaching Content provided by your Users, Ace-Up and Coaches are independent controllers, and in such case, Ace-Up will process any Personal Data in accordance with the Ace-Up EULA, Privacy Policy and any preferences set by such User. To facilitate open and candid dialogue with Users and their Coach, Ace-Up shall be under no obligation to share any Coaching Content or the nature of any specific Coaching Service sessions with Customer. Notwithstanding the foregoing, Customer may access certain Outputs through the Ace-Up Platform that are derived from the Coaching Content; provided however, such Outputs shall be aggregated and anonymized, and not contain any Personal Information of Users.  
  1. Consideration.
  1. Invoicing. Except as otherwise set forth in any Order, all fees related to Services will be invoiced by Ace-Up in advance on an annual basis (“Fees”).  
  2. Fees and Payment. Customer will pay the Fees to Ace-Up in accordance with these Terms, except as otherwise set forth in the applicable Order. Unless otherwise specified in any Order, all invoices issued by Ace-Up will be due and payable thirty (30) days after receipt by Customer.  All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.  The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services  (excluding taxes based solely on Ace-Up’s income). Fees for Renewal Subscription Periods relating to any Order, if any, will be subject to adjustment by Ace-Up on at least forty five (45) days’ notice, unless otherwise provided in the applicable Order.   
  3. Expenses.  Customer will reimburse Ace-Up for any pre-approved travel and out-of-pocket expenses incurred by Ace-Up in connection with the provision of Services, provided that Customer has approved such expenses in writing or via email.
  1. Warranties; Disclaimers; Limitations on liability 
  1. General Representations.  Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
  2. Customer Content. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents and permissions for Customer to make available the Customer Content to Ace-Up and for Ace-Up to use the Customer Content as contemplated herein.
  3. Compliance with Laws. Customer will use the Services in accordance with all applicable laws, rules and regulations.  
  4. Warranty Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  ACE-UP DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
  5. Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  IN NO EVENT WILL ACE-UP BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
  6. Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY ACE-UP UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE (THE “GENERAL CAP”).  THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO: (a) A PARTY’S INDEMNIFICATION OBLIGATIONS; (b) CUSTOMER’S VIOLATION OF ACE-UP’S INTELLECTUAL PROPERTY RIGHTS; (c) BREACHES OF CONFIDENTIALITY; (d) FEES OWED BY CUSTOMER TO ACE-UP, OR (e) ACE-UP’S BREACH OF THE DPA. NOTWITHSTANDING THE FOREGOING, ACE-UP’S LIABILITY FOR BREACHES OF CONFIDENTIALITY OR THE DPA SHALL NOT EXCEED TWO TIMES (2X) THE GENERAL CAP.
  7. Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF ACE-UP WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  THE PROVISIONS OF THIS SECTION 7 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
  1. Indemnification
  1. Ace-Up Indemnity. Ace-Up will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Ace-Up Platform infringe any U.S. patent, copyright, trademark or trade secret.
  2. Exclusions. Section 8.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any User in breach of this Agreement,  (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Ace-Up if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
  3. Customer Indemnity. Customer will indemnify, defend and hold harmless Ace-Up, its directors, officers, and employees (each a “Ace-Up Indemnified Party”) from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 7, and (b) arising out of any Customer Indemnity Responsibility.
  4. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
  5. Infringement.  If the Ace-Up Platform are, or in Ace-Up’s opinion, are likely to become, the subject of any infringement-related claim, then Ace-Up will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Ace-Up Platform; (b) replace or modify the infringing technology or material so that the Ace-Up Platform become non-infringing and remain materially functionally equivalent; or (c) terminate the Order pursuant to which the Ace-Up Platform are provided and give Customer a refund for any pre-paid but unused Fees.
  6. THE PROVISIONS OF THIS SECTION 8 STATE ACE-UP’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
  1. Term and Termination
  1. Term.  The term will commence on the first Order’s effective date and shall remain in effect so long as one or more Orders are in effect (the “Agreement Term”).  Each Order will have an initial term or subscription period as set forth in the Order (the “Initial Term” or “Initial Subscription Period”). Orders shall automatically renew for successive one (1) year terms or such other renewal period set out in the Order Form (each a “Renewal Term” or “Renewal Subscription Period”), unless either party provides notice to the other of its intention not to renew at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term.  Any Order’s trial period, Initial Term, and all Renewal Terms will collectively be referred to as the “Order Term” or “Subscription Period”.  References to the “Term” mean either the Agreement Term or Order Term (or both), depending on the context.
  2. Termination.  Either party may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
  3. Suspension of Service(s).  At any time during the Term, Ace-Up may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by Ace-Up within fifteen (15) days after it was due, or (c) breach or violation by Customer (or its’ Users) of any laws, rules, or regulations.
  4. Return of Customer Content. Within thirty (30) days following termination of this Agreement for any reason, Ace-Up, upon Customer’s written request, will return all Customer Content to Customer in a mutually agreed format.  Thereafter, Ace-Up reserves the right to permanently and definitively delete the Customer Content (unless Customer has timely requested, and Ace-Up has not yet complied with Customer’s request to return the Customer Content).  Upon Ace-Up’s request, Customer agrees to acknowledge its receipt of Customer Content.
  5. Effects of Termination.  Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Ace-Up prior to such termination or expiration and all completed but unpaid Professional Services fees will be immediately due and payable and (b) all license and access rights granted will immediately cease to exist.  Unless Customer is terminating for Ace-Up’s uncured material breach or expressly provided otherwise, any Fees owed by Customer for the remainder of the Term will also be due and payable by Customer to Ace-Up.   Applicable Sections that are required to survive to give effect to the intent of the Agreement will survive any expiration or termination of this Agreement, including Sections 1.4, 2, 3, 5, 6, 7, 8.4, 8.5 and 10.
  1. Insurance.  During the Term, Ace-Up will maintain, at its own expense, the following insurance coverage:  (a) Workers’ Compensation insurance with benefits afforded under the laws of the states that it is required to carry such insurance that meet or exceed the statutory requirements; (b) Commercial General Liability insurance with minimum limits of $5,000,000 in the aggregate, with $1,000,000 per each occurrence for all bodily injury or property damage incurred in any one occurrence; and (c) Errors & Omissions (including cyber liability) insurance with annual limits of $5,000,000 in the aggregate.

  1. General
  1. Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign or transfer this Agreement in its entirety, without the consent of the other party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
  2. Publicity. During the Term and thereafter, Ace-Up may refer to Customer as a Ace-Up customer, orally and in writing (including in promotion or marketing materials and on Ace-Up’s website and social media postings).
  3. Notices.  All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order and will be effective upon receipt.  Either party may change its address by giving notice of the new address to the other party.
  4. Governing Law; Disputes.  This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law principles.  The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in Boston, Massachusetts and both parties submit to the jurisdiction and venue of such courts.
  5. Remedies.  Customer acknowledges that any actual or threatened breach of Section 1.4 and 2 will constitute immediate, irreparable harm to Ace-Up for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  
  6. Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  7. Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
  8. No Third-Party Beneficiaries.  The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity (including any User or any Employee) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
  9. Construction.  The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”
  10. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
  11. Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.