Terms & Conditions

1. License Grant. You are hereby granted a non-exclusive, non-transferrable, royalty-free, limited right and license to access and use the Service solely as permitted in these Terms, as described on one or more ordering documents or statements of work signed by User and LIFTinnovate (each an “Order”) and as set forth by LIFTinnovate on the Service. User may not sublicense, assign or otherwise permit any third party to exercise its rights herein without the prior written approval of LIFTinnovate. Except as specifically set forth in these Terms, no other rights or licenses are granted to User. Any minor updates, bug fixes, patches, or other such modifications which are generally made available by LIFTinnovate without charge to other licensees of the Service shall be provided without charge to User. The provision of new releases, major upgrades, add-ins, modules or other such enhancements shall be at LIFTinnovate’s sole discretion and may be subject to the payment of additional fees or a separate licensing agreement.

2. Access Credentials. Access credentials to the Service may only be used by the party(ies) authorized on the Order to access the Service. User is responsible for the security of its credentials and will be solely liable for any use or unauthorized use under such credentials. In the event User knows of or reasonably suspects unauthorized access to or use of the Service, User shall immediately notify LIFTinnovate in writing and fully cooperate with LIFTinnovate in all efforts to prevent or remediate such use.

3. Restrictions. Except as provided in these Terms, User may not disclose, distribute, loan, display or provide access to the Service to any third party. In no event may User create derivative works based on the Service or any part thereof and, except as may be permitted under applicable law, User may not reverse engineer, decompile, translate, adapt, create derivative works or disassemble the Service, nor shall User attempt to create the source code from the code for the Service. User assumes sole responsibility for the use, and results obtained from use, of the Service. User may not access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service. Except as specifically authorized in writing by LIFTinnovate, User agrees not to publicly disseminate performance information or analysis (including, without limitation, benchmarks) developed by User or obtained from any source relating to the Service.

4. Managed Services. LIFTinnovate shall perform the professional services as set forth on each Order. Either party may request changes to an Order at any time. Changes must be requested in writing with sufficient detail to enable the other party to assess the impact of the requested change. Upon receipt of a request for any changes to an Order, the receiving party shall set forth in writing within ten (10) days of such request any changes to the services, products, processes or costs necessary to implement such changes. All changes must be mutually agreed to in writing by both parties. Until a change is agreed to in writing by both parties, the existing terms of the Order shall apply. User acknowledges that the rendering of the services will require the good faith cooperation of User. Therefore, User agrees to provide all information reasonably requested by LIFTinnovate in order to perform the services, to timely respond to inquiries and to promptly review any deliverables. LIFTinnovate reserves the right to reasonably extend the delivery schedule or modify the scope of the services to the extent required because of User’s failure to cooperate as set forth herein. User shall be responsible for all materials and information provided by, on behalf of or approved by, User for use in connection with the services. LIFTinnovate may rely upon all decisions and approvals from User, and LIFTinnovate shall not be liable for any matter as a result of following User’s specific instructions.

5. End User Support. LIFTinnovate will provide technical support to User via e-mail on weekdays during the hours of 9:00 am through 5:00 pm Central Standard time, with the exclusion of U.S. federal holidays (“Support Hours”). User may initiate a helpdesk ticket any time by emailing support@liftinnovate.com LIFTinnovate will make commercially reasonable efforts to respond to all helpdesk tickets within two (2) business days.

6. Fees. User shall pay all amounts set forth on the Order in accordance with applicable due dates on the order. Payment by User is not contingent on User receiving payment from any third party. User shall also be responsible for paying any taxes (such as applicable sales taxes, duties or goods and services taxes) for which LIFTinnovate is required by law to collect from User. If User has provided LIFTinnovate with a credit card, debit card or ACH information for payment purposes, then User hereby authorizes LIFTinnovate to charge all fees against such payment method. User shall be responsible for interest on all amounts overdue by more than thirty (30) days at a rate of the lesser of one and one-half percent (1.5%) or the maximum rate allowable by applicable law, and all collection costs, including attorney’s fees and expenses.

7. Termination. These Terms shall be in effect during the term of each Order. Either party may terminate these Terms upon thirty (30) days prior written notice if the other party is in breach and does not cure such breach within the notice period. Notwithstanding the foregoing, LIFTinnovate may suspend or terminate User’s access to the Service immediately and without prior notice if reasonably necessary to avoid harm or liability to LIFTinnovate. Upon termination for any reason, User shall immediately cease using the Service.

8. Third Party Platforms. The Service is dependent upon certain systems not controlled by LIFTinnovate, such as hosting providers, third party content providers and User’s information and systems. While LIFTinnovate shall make commercially reasonable efforts to ensure that the Service operates with all such providers as intended, in no event shall LIFTinnovate ever be liable for an act, omission or failure of any other party.

9. Proprietary Rights. Except for the limited access rights granted herein, User does not acquire any interest in or right to the Service, including by virtue of entering into these Terms. Without limitation, LIFTinnovate owns, and shall continue to own, all intellectual property and proprietary rights in and to all portions of the Service (except for Usage Data, discussed below). User shall not remove or obscure any disclaimer or notices that appear on any Service. User shall take no position contrary to, or that would diminish, LIFTinnovate’s ownership rights set forth herein. Any and all suggestions, ideas, data, enhancement requests, feedback, and other information that User provides to LIFTinnovate regarding its products, platforms, and/or services (collectively, “Feedback”) shall be deemed, and will be treated by LIFTinnovate, as non-proprietary to User, and may be used by LIFTinnovate for any purpose without acknowledgement or compensation. Except as expressly set forth in these Terms, no other licenses or rights are acquired by or granted to User and LIFTinnovate reserves all rights, title and interests in and to its intellectual property and Service.

10. Data & Privacy. Except as set forth herein, all data input by User into the Service or first generated solely and exclusively for User (“Usage Data”) shall be owned by User. For the avoidance of doubt, while Usage Data may include certain scores and reports for User, the underlying methodology, templates, surveys, plans and other materials used to generate such scores and reports will not be considered Usage Data and shall be owned by LIFTinnovate. User hereby grants LIFTinnovate a non-exclusive, worldwide, perpetual right and license to use the Usage Data solely (i) to provide services to User, (ii) to operate, maintain, improve and analyze trends through the Service for internal purposes, (iii) to create Aggregate Data (defined below) that may be used and disclosed by LIFTinnovate and (iv) as otherwise permitted by these Terms. LIFTinnovate may de-identify and/or aggregate Usage Data in a manner that does not personally identify any one User (“Aggregate Data”). All Aggregate Data shall be owned by LIFTinnovate and may be used by LIFTinnovate for any purpose, such as improving the features of the Service. For the avoidance of doubt, LIFTinnovate shall not publicly disclose any Usage Data in a manner that identifies User without User’s prior written consent.

11. Confidentiality. In connection with these Terms, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential Information also includes the terms of these Terms. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) is independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as authorized and as necessary in connection with these Terms. Each party shall use the Confidential Information of the other party solely for the purpose of performing obligations or exercising rights under these Terms and shall only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Each party shall promptly notify the other party in the event any unauthorized access to Confidential Information is suspected. Upon the termination or expiration of these Terms, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge information archived pursuant to their normal document retention procedures or required to be maintained by applicable law if the provisions of this section otherwise continue to be strictly observed.

12. Representations; Warranties. Both parties represent and warrant that they shall comply with all applicable laws, rules and regulations in connection with the performance of their respective obligation and exercise of rights. LIFTinnovate further represents and warrants that the Service shall operate substantially according to its specifications. In the event the Service does not operate substantially according to its specifications, User must provide LIFTinnovate with written notice within thirty (30) days of any such failure. As LIFTinnovate’s sole obligation, and User’s exclusive remedy, LIFTinnovate shall make commercially reasonable efforts to properly resolve such performance issues. Notwithstanding anything to the contrary, LIFTinnovate is not responsible for errors or problems using the Service which are due to User’s environment, misuse of the Service or other matters outside the reasonable control of LIFTinnovate.

13. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED BY LIFTINNOVATE “AS IS” AND LIFTINNOVATE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LIFTINNOVATE DOES NOT WARRANT THAT THE SERVICE WILL MEET USER’S SPECIFIC REQUIREMENTS OR WILL BE UNINTERRUPTED. LIFTINNOVATE SHALL NOT BE RESPONSIBLE FOR ANY DECISIONS MADE BY USER BASED UPON THE SERVICE.

14. Limitation of Liability. IN NO EVENT WILL LIFTINNOVATE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. LIFTINNOVATE’S CUMULATIVE LIABILITY TO USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO LIFTINNOVATE BY USER DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM UNDER THESE TERMS.

15. Indemnification. LIFTinnovate shall defend, indemnify and hold harmless User, its affiliates, successors and assigns, and each of their officers, directors, clients and agents (“Indemnitees”), against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs) (“Claims”), arising out of or in any way connected with a claim that the Service infringes the intellectual property rights of any third party. User shall defend, indemnify and hold harmless LIFTinnovate and its Indemnitees against and from any Claims arising out of or in any way connected with (i) the Usage Data or (ii) User’s ultimate use of the Service, except to the extent caused by a breach of these Terms by LIFTinnovate. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party’s obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party’s prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.

16. Publicity. LIFTinnovate may identify User as a customer of the Service for promotional purposes, including displaying User’s name, logos and trademarks on LIFTinnovate’s website and in LIFTinnovate’s publicity materials.

17. Export Controls. User acknowledges and agrees that the Service, or a portion thereof, and the information contained therein, may be subject to the U.S. Export Administration Regulations and diversion, and that use or access contrary to U.S. law and regulation is prohibited. User agrees to not directly or indirectly export, import or transmit the Service, or a portion thereof, and the information contained therein, to any country, end user or for any access or use that is prohibited by any applicable U.S. regulation or statute (including those countries embargoed from time to time by the U.S. government or the United Nations). Additionally, User agrees to not directly or indirectly export, import, transmit access or use the Service, or a portion thereof, and the information contained therein, contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. User represents and warrants that neither the United States Bureau of Industry and Export Administration nor any other governmental agency has (i) issued sanctions against it or those who access or use any of the Service through User’s credentials or (ii) otherwise suspended, revoked or denied its export privileges.

18. General. These Terms incorporate by reference any terms or policies set forth by LIFTinnovate on the Service. If any provision of these Terms is held to be void, invalid or inoperative, the remaining provisions of these Terms shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of these Terms. User may not assign these Terms to any other entity without the prior written consent of LIFTinnovate, whether by operation of law or otherwise, except in connection with a merger, change of control or sale of substantially all of its assets to a party that is not a direct competitor of LIFTinnovate. These Terms shall inure to the benefit of the parties’ permitted successors and assigns. The provisions of Sections 3, 6, 9, 10, 11, 13, 14, 15, 17, 19 and any accrued payment obligations shall survive the termination of these Terms. Except as set forth herein, these Terms sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. In the event of any conflicts between these Terms and the Order, the Order shall prevail. These Terms shall be governed by the laws of the State of California and each party submits to exclusive jurisdiction and venue in the courts located in Los Angeles County, California for all matters.