1.1 Generally. Ace-Up will make available or provide, as applicable, and Customer will pay for, the Services described in one or more Order Forms executed by both Parties referencing or incorporating these T&Cs (collectively with any such applicable Order Form(s), the “Agreement”). The “Services” may include: (a) access to Ace-Up’s proprietary software-as-a-service technology platform and related content and services accessible through the internet in accordance with Ace-Up’s access protocols and Documentation (the “Platform”), (b) remote coaching services for Customer Users (“Coaching Services”), and (c) any other services described in an Order Form executed by both Parties (“Other Services”). As used herein, “Documentation” means any documents made available to Customer by Ace-Up that set out a description of the Platform and related Services and any applicable user instructions.
1.2 Platform. Customer and its designated Users are solely responsible for their access to and use of the Platform, including the hardware, software, and telecommunication and networking services to connect to the Internet and Platform. Customer and its users are responsible for keeping their credentials secure and all activities occurring with their log-in credentials. Customer will be provided administrative user credentials for handling administrative matters relating to the Customer’s Services (“Admin Users”), including payment of the fees and renewing, extending, or increasing Services, if desired. Admin Users will designate Customer related executives and employees for Coaching Services as a “Customer User”. Such Customer Users and Admin Users may be referred to collectively herein as “Users.”
1.3 Coaching Service. Coaching Services will be provided by Ace-Up’s network of both employee and independent contractor coaches (“Coaches”) that have undertaken certain training per Ace-Up’s then current policies and methodologies. Coaching Services are intended to facilitate each Customer 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 Customer User, and are solely provided to and for the Customer’s benefit. Customer and Customer 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. To facilitate open and candid dialogue with Customer Users and their Coach, Ace-Up shall be under no obligation to share the content or nature of any specific Coaching Service sessions with Customer; however, Ace-Up may share certain aggregated and anonymized information with Customer.
1.5 Other. Customer is responsible for informing Users of the nature of the Services contemplated under the Agreement, Customer’s employer-employee and other relationship with the Admin Users and Customer Users, and their acts, omissions and decisions. Each Party will reasonably cooperate with the other Party and provide all reasonable information, materials, and access to facilitate the Services.
2.1 Fees and Payment. The fees due for Services will be set forth in the applicable Order Form, are exclusive of taxes, and are non-refundable. Customer is responsible for all taxes, except for taxes on Ace-Up’s income, and taxes may be added to payment due to Ace-Up when processing invoices and payments. Fees and taxes will be paid through the Platform, unless expressly agreed otherwise in an Order Form. Customer will pay upfront for the Services through the Platform using the payment methods supported by the Platform, unless otherwise agreed in a writing signed by Ace-Up. Customer will provide valid and updated credit card information or another form of payment acceptable to Ace-Up. If Customer provides credit card information, Customer represents that it and its applicable User is authorized to use the card and authorizes Ace-Up to charge the card for all payments hereunder. By submitting payment information, Customer authorizes Ace-Up to provide that information to third parties for purposes of facilitating payment. Customer also agrees to verify any information requested by Ace-Up for purposes of acknowledging or completing any payment. Ace-Up will be entitled to recover all costs of collection, including reasonable attorneys’ fees, from Customer plus interest for amounts not paid when due.
3. TERM; TERMINATION.
3.1 Subscription Period. The Agreement will be effective as of the first Order Form’s Effective Date and continue for the initial subscription period identified in the Order Form (the “Initial Subscription Period”). Following the Initial Subscription Period, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Subscription Period” and, together with the Initial Subscription Period, the “Subscription Period”), unless earlier terminated in accordance with this Agreement or written notice of non-renewal by one Party is provided to the other Party no fewer than thirty (30) calendar days prior to the last day of the Subscription Period. Fees for each Renewal Subscription Period will be determined based on the then current list rates published by Ace-Up, unless otherwise specified in an Order Form.
3.2 Termination for Cause. Either Party may terminate this Agreement for breach of this Agreement upon notice in the event that the breaching Party fails to cure such breach within fifteen (15) days of its receipt of written notice identifying such breach by the non-breaching Party.
3.3 Termination for Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action (each, a “Force Majeure Event”). If either Party’s nonperformance hereunder due to a Force Majeure Event persists for more than 30 days, either Party may immediately terminate this Agreement without charge or penalty upon notice to the other Party.
3.4 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 will be immediately due and payable; (b) in the event Customer terminates pursuant to 3.2, Ace-Up shall return any prepaid, but unused fees through the effective date of termination; and (c) all licensed and access rights granted will immediately cease to exist. Sections 2, 3.4, 5, 6.3, 6.4, 6.5 and 7 will survive any expiration or termination of this Agreement. Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
4. INTELLECTUAL PROPERTY.
4.1 General. The Services, Platform, and related materials, documents and methodologies, including coaching related know-how and methodologies (collectively “Proprietary Items”), are being made available on a strictly confidential and limited use basis in accordance with the Agreement during the Subscription Period. Proprietary Items do not include Customer or Customer User content or data; however, Ace-Up may aggregate and anonymize such content and data and use such content and data to modify and improve its Proprietary Items or develop new products and services, and Ace-up retains all rights, title and interest therein and thereto (except for the Customer content and data). The Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights are transferred to Customer under the Agreement. Ace-Up reserves all rights not expressly granted by the Agreement.
4.2 Title and Ownership. All right, title, and interest in and to the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Ace-Up. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives) will be solely and exclusively owned by Ace-Up. Customer hereby assigns to Ace-Up any rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Customer or any of its users or representatives provide, propose, create, conceive, author or develop relating to this Agreement. Customer will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Ace-Up’s rights described above and the intent of this Section.
4.3 Restrictions. Customer shall not (and shall not permit its users to) (a) make the Services or Platform available to any third party other Customer Users and Admin Users, (b) resell, lease, distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (iii) use the Services or Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services or Platform to store or transmit malicious code, (d) use or access the Services or Platform in any way that threatens the integrity, performance, or availability of the Services or Platform or any data therein, (e) attempt to gain unauthorized access to the Services, Platform or the data stored or processed therein, other than authorized Customer data, (f) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part, (g) use or reference the Services or Platform to develop or have developed a competing service or product, or (h) solicit, retain or seek to retain, directly or indirectly, the services of any Coach independently of the Services from Ace-Up during the Subscription Period or for 12 months thereafter. Ace-Up may restrict or prohibit access to the Services or Platform if Ace-Up reasonably suspects a breach.
5.1 Definition. “Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with this Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information shall include: (a) Customer data, content and non-public information, documentation, and materials, which may be disclosed or made available from any source or in any form relating to the Customer’s business, and (b) Proprietary Items in the case of Ace-Up. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the identity of the Services.
5.2 Obligations. All Confidential Information of a Party (“Disclosing Party“) in the possession of the other (“Receiving Party“), whether or not authorized, shall be held in confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality.
6. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY.
6.1 General Warranties. Each Party represents and warrants that: (a) it is a legal entity duly organized, validly existing and in good standing; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (c) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material adverse effect on its ability to fulfill its obligations hereunder.
6.2 Limited Warranties. Ace-Up warrants that it will maintain and support the Platform in accordance with applicable generally recognized industry standards for similar Platforms, and the Services will be provided in accordance with its documentation and policies in all material respects during the applicable Subscription Term. Ace-Up will use commercially reasonable efforts to correct, repair, replace, or re-perform any specific Service not provided in accordance with this warranty to the extent identified to Ace-Up within fourteen (14) days of the alleged defect.
6.3 Disclaimer. EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION, THE SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ACE-UP MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. ACE-UP MAKES NO REPRESENTATIONS OR WARRANTIES, NOR SHALL ACE-UP HAVE ANY LIABILITY WITH RESPECT TO, ANY THIRD PARTY DATA, PRODUCTS OR SERVICES.
6.5 By Ace-Up. Ace-Up shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim that any use of, or access to, the Proprietary Items by Customer as expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent or any copyrights or trade secrets, provided that Customer gives Ace-Up (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Ace-Up may reasonably request, at Ace-Up’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Ace-Up shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) the combination, operation, or use of the Proprietary Items with content, data, products, services, deliverables, materials, technologies, business methods or processes not furnished by Ace-Up; (2) modifications which were not made by Ace-Up; (3) Customer’s breach of this Agreement or use of the Proprietary Items other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Ace-Up believes that such a claim is likely, Ace-Up may, at its option (i) modify the Proprietary Item so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or documentation; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate on written notice to Customer and refund to Customer any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Ace-Up’s entire liability and Customer’s sole remedy for any infringement or misappropriation.
6.6 By Customer. Customer shall indemnify, hold harmless, and, at Ace-Up’s option, defend Ace-Up from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim resulting from or relating to the IP Exclusions, Customer’s employee-employer relationship with Users, Customer content or data (e.g., if Customer lacks adequate rights in or to Customer data or such Customer data is libelous, defamatory, or infringing), except to the extent the claim is subject to indemnification under Section 6.4.1 or Ace-Up’s willful misconduct or gross negligence. Ace-Up agrees to give Customer: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim, unless such settlement completely and forever releases Ace-Up with respect thereto or unless Ace-Up provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Ace-Up, Ace-Up may participate in such defense at its own expense by counsel of its choice.
6.7 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA) ARISING IN CONNECTION WITH THE AGREEMENT OR THE USE OF ANY SERVICES OR THE PLATFORM BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT AND ALL ORDERS SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE CUSTOMER TO ACE-UP DURING THE PRIOR TWELVE (12) MONTHS UNDER THE APPLICABLE ORDER FORM(S) GIVING RISE TO THE CLAIM OR THIS AGREEMENT IF SUCH CLAIM DOES NOT RELATE TO A SPECIFIC ORDER. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO THIRD PARTY CLAIMS SUBJECT TO INDEMNIFICATION, THE UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY ITEMS, BREACHES OF SECTION 4.3, OR AMOUNTS FEES AND EXPENSES DUE AND PAYABLE TO ACE-UP UNDER THE AGREEMENT.
6.8 Other Limitations. The warranties and obligations made by Ace-Up in the Agreement, and the obligations of Ace-Up under the Agreement, run only to Customer and not to any third party. Under no circumstances shall any Customer affiliate, employee or any other third party be considered a third party beneficiary of this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year after Customer first has knowledge of the basis for the action or claim. The Parties have freely and openly negotiated the Agreement, including the pricing, with the knowledge that the liability is to be limited in accordance with the provisions of the Agreement.
The Agreement does not create, any partnership, joint venture, agency, fiduciary, employment, or other relationship between the Parties, beyond the relationship of independent parties to a commercial contract. Neither Party will hold itself out to be vested with any authority to bind the other Party contractually, or to act on behalf of the other Party. The waiver or failure of either Party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. If any provision of the Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be struck and the remainder of the Agreement will remain in full force and effect. Except as provided below, neither Party may assign or delegate its rights, duties or obligations under the Agreement without the prior written consent of the other Party, which will not be unreasonably withheld, delayed, or conditioned. A Party may assign all of its rights and obligations under the Agreement to a successor-in-interest as a result of a merger or consolidation or in connection with the sale or transfer of all or substantially all of it business or assets to which the Agreement relates; however, in the case of any assignment by Customer, such assignment may result in an increase in fees if its usage levels of the Services increase. The Agreement will be binding upon and will inure to the benefit of the Parties, their successors and permitted assigns. The Agreement and the Parties’ respective performance hereunder will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules. Any notice provided pursuant to the Agreement will be in writing directed to the address set forth for each Party in an Order Form (or otherwise in the Platform in the case of Customer) and will be deemed given: (a) if by hand delivery, upon receipt thereof; (b) if mailed, five (5) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; (c) if sent via overnight courier, upon receipt; or (d) if sent by email to Customer, upon delivery. Any and all provisions in the Agreement which would reasonably be expected to survive the termination or expiration of the Agreement shall survive and be enforceable after such termination or expiration. Neither Party shall be liable for any delay or failure in performing hereunder (except for any obligations to make payments to the other Party hereunder) if caused by fire, accident, labor trouble, weather condition, communications or utilities failure, act of God, armed conflicts, or any other cause of like character beyond such Party’s reasonable control, provided that the Party so affected makes every reasonable effort to promptly resume performance. The Party so affected shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue. The Agreement constitutes the complete and exclusive agreement between the Parties relating to the subject matter hereof and supersedes all prior proposals and agreements between the Parties relating to this subject matter. The Agreement may not be modified or altered except by written instrument duly executed by both Parties; however, from time to time Ace-Up may add supplemental provisions through supplemental click-through terms and conditions on the Platform and such supplemental provisions will be incorporated into the Agreement to the extent an Admin User agrees thereto. The Agreement is intended for the sole and exclusive benefit of the signatories, is not intended to benefit any third party, and only the Parties may enforce the Agreement. The Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.