Elev8– Terms of Business

  1.    Relationship and Contract

1.1       These terms of business (“Terms”) apply to the relationship between the Elev8 Affiliate that proposes to or has entered into or agreed to the Order or Statement of Work (“Elev8”) and the Customer identified on the relevant Order or Statement of Work (“Customer”). These Terms together with any additional terms set out in the relevant Order or Statement of Work form the agreement between the parties and govern the delivery of all Services provided by Elev8 to the Customer. Any other terms that the Customer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing and expressly excluded.

1.2       These Terms may only be varied by express variation in the Order or Statement of Work. Any such variation that conflicts with these Terms or any description of the Services in these Terms or any Elev8 website shall take precedence.

1.3       Elev8 may update these Terms from time to time. The terms that form part of the agreement between the parties are those published on Elev8’s website (at https://www.Elev8group.io/terms-of-business) at the Commencement Date.

1.4       Nothing in these Terms obliges either party to enter into an Order or Statement of Work but, once agreed and accepted by Elev8, such Order or Statement of Work shall be binding on the parties and, together with these Terms, forms the contract between the parties for the delivery of the Services. The Order or Statement of Work shall become effective on the date specified on the Order or Statement of Work or, where no such date is so stated, on the date when it is countersigned by Elev8 (“Commencement Date”).

1.5       Any samples, drawings, descriptive matter or advertising issued by Elev8, and any descriptions or illustrations contained in Elev8's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the contract between the parties or have any contractual force.

1.6       Any quotation given by Elev8 is subject to agreement with the Order or Statement of Work and shall not be binding until such Order or Statement of Work has been accepted by Elev8.

  1.    Services

2.1       The Services provided by Elev8 and governed by these Terms consist of the following:

(a)      The Program: a program for participants within the Customer to participate in certain learning and networking activities and to benefit from advisory support as outlined www.Elev8group.io (“Program”);

(b)      Consulting Services: Customer-specific consulting support (such as the development of diagnostic tools, research, and advisory support) that is delivered to the Customer and as outlined in the Statement of Work (“Consulting Services”);

(c)      Learning Services: Customer-specific consulting support (such as the development of diagnostic tools, research, advisory support) that is delivered to the Customer and as outlined in the Statement of Work (“Learning Services”);

(d).     The Cultiv8 and Collabor8 Platforms: Access by named and authorised individuals to a platform focused on up-skilling, connecting, and providing a resource centre for HR professionals as outlined on www.Elev8group.io and the relevant Order form (“Cultiv8 and Collabor8 Platform”);

(e)      Other Professional Services: Speaking engagements at conferences and client events, and sponsorship rights to Elev8’s Articul8 podcast, as outlined in the relevant Order form (“Speaker“, “Sponsorship Rights”)

2.2       The Program, Cultiv8 and Collabor8 Platform and Other Professional Services are made available to Customers on acceptance of a relevant, valid Order and further details relating to those Services may be set out in that Order.  A description of the Consulting Services and Learning Services and details relating to their delivery are set out in a Statement of Work

  1.    Interpretation: The following definitions and rules of interpretation apply in these Terms.

3.1       Definitions:            

Business Day: a day other than a Saturday, Sunday or public holiday in the country in which the Elev8 Affiliate is located.            

Data Protection Legislation:  

(i) the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, including without limitation the UK Data Protection Act 2018;

(ii) Directive 2002/58/EC as updated by Directive 2009/136/EC;  

(iii) the California Consumer Privacy Act of 2018, California Civil Code §1798.100, et seq., and

(iv)  any other laws and regulations relating to the processing of personal data and privacy which apply to a party.            

Deliverables: the materials delivered as part of the Consulting Services which may either have been previously prepared or acquired by Elev8 before or independently of the Services engagement or produced by Elev8 for the Customer.              

Fees: the Subscription Fees and any Consulting Services, Consulting Services, Learning Services, and Other Professional Services Fees. Consulting Services Fees: the fees payable by the Customer for the supply of any Consulting Services per clause 10 (Fees and Payment).

Learning Services Fees: the fees payable by the Customer for the supply of any Learning Services per clause 10 (Fees and Payment). Other Professional Services Fees: the fees payable by the Customer for the supply of any Other Professional Services per clause 10 (Fees and Payment).

Subscription Fees: the fees payable by the Customer for participation in or access to the Program or the Cultiv8 or Collabor8 Platform, as the case may be, per clause 10 (Fees and Payment).            

Elev8: The Elev8 entity that has agreed to the Order or Statement of Work being either Elev8 Pty Ltd, a company registered in Australia with company number 657099146 and whose registered office is at 17-25 William Street, Earlswood, NSW, 2206, Australia.            

Elev8 Affiliate: Either of the Elev8 entities as the case may be.            

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.            

Order: The customer's order for the Program or the Cultiv8 and Collabor8 Platform Services is made on Elev8’s standard order form for the relevant Services.              

Participant: a director or employee of the Customer approved in writing, from time to time, by Elev8 to participate in the Program.            

Platform Content: the content, including courses and materials, is available on the Cultiv8 Platform from time to time.            

Program Activities: the meetings and events organised by Elev8 for Participants to attend as part of the Program.            

Program Materials: any materials and documents made available by Elev8 to Participants concerning the Program.              

Services: The services provided by Elev8 are the Program, the Consulting Services, Learning Services, Professional Services and/or the Cultiv8 and Collabor8 Platform, as the case may be.              

Subscription: a subscription for a Participant to (i) in the case of the Program: participate in the Program Activities and receive access to the Program Materials or (ii) in the case of the Cultiv8 and Collabor8 Platform to access the Platform Content.            

Subscription Term: the term of the Customer’s Subscription as stated in the relevant Order.

3.2       A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

3.3       Any words following the terms including, include, in particular, for example, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

3.4       A reference to writing includes fax and email.

  1.    The Program Activities and Materials

4.1       Subject to the Customer paying the applicable Subscription Fees, Elev8 will make the Program Activities and Program Materials available to each Participant.

4.2       The dates, venues and times of the Program Activities will be displayed on Elev8’s website.
4.3       Elev8 reserves the right to make changes to the Program at its discretion, however, it will endeavour to give as much notice as practicable to Participants of any changes to Program Activities.

4.4       If a Participant is unable to attend any of the Program Activities for any reason, the Customer shall not be entitled to any refund of the Subscription Fees.

4.5       The Customer shall give Elev8 as much notice as is reasonably practicable if any Participant is due to leave the employment of the Customer or will cease to be a director of the Customer.
4.6       If the Customer wishes to replace any Participant for any reason it shall provide written details of the proposed replacement to Elev8.

4.7       Elev8 reserves the right at its discretion to suspend a Participant’s access to the Program at any time, for example, due to inappropriate behaviour, by giving written notice to the Customer; such notice shall include Elev8’s reasons for the suspension.

  1.    Consulting Services

5.1       Subject to the Customer paying the applicable Consulting Services Fees, Elev8 shall supply the Consulting Services to the Customer per the Statement of Work in all material respects.

5.2       Elev8 shall use reasonable endeavours to meet any performance dates for the Consulting Services specified in the Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Consulting Services.

5.3       Elev8 reserves the right to amend the details of Consulting Services, either if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services. Elev8 shall notify the Customer of any such event.

5.4       The performance of the Consulting Services is contingent on the Customer:

(a)      promptly responding to questions, making decisions and providing information and approvals as necessary for Elev8 to be able to provide Consulting Services;

(b)      ensuring that appropriate representatives are reasonably available as required for consultation and guidance concerning the supply of the Consulting Services including, without limitation, making relevant personnel available to discuss any Deliverables; and

(c)      allowing Elev8 such access to its facilities, equipment and data as is reasonably required to provide the Consulting Services; and

(d)      complying with any additional obligations set out in the Statement of Work.

  1.    Learning Services

6.1       Subject to the Customer paying the applicable Learning Services Fees, Elev8 shall supply the Learning Services to the Customer per the Statement of Work in all material respects.

6.2       Elev8 shall use reasonable endeavours to meet any performance dates for the Learning Services specified in the Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Learning Services.

6.3       Elev8 reserves the right to amend the details of Learning Services, either if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services. Elev8 shall notify the Customer of any such event.

6.4       The performance of the Learning Services is contingent on the Customer:

(a)      promptly responding to questions, making decisions and providing information and approvals as necessary for Elev8 to be able to provide the Learning Services;

(b)      ensuring that appropriate representatives are reasonably available as required for consultation and guidance concerning the supply of the Learning Services including, without limitation, making relevant personnel available to discuss any Deliverables; and

(c)      allowing Elev8 such access to its facilities, equipment and data as is reasonably required to provide the Learning Services; and

(d)      complying with any additional obligations set out in the Statement of Work.

  1.   Other Professional Services

7.1       Subject to the Customer paying the applicable Other Professional Services Fees, Elev8 shall supply the Other Professional Services to the Customer per the Statement of Work in all material respects.

7.2       Elev8 reserves the right to amend the details of Other Professional Services, either if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services. Elev8 shall notify the Customer of any such event.

7.4       The performance of the Other Professional Services is contingent on the Customer:

(a)      promptly responding to questions, making decisions and providing information and approvals as necessary for Elev8 to be able to provide the Other Professional Services;

(b)      ensuring that appropriate representatives are reasonably available as required for consultation and guidance concerning the supply of the Other Professional Services including, without limitation, making relevant personnel available to discuss any Deliverables; and

(c)      allowing Elev8 such access to its facilities, equipment and data as is reasonably required to provide the Other Professional Services; and

(d)      complying with any additional obligations set out in the Statement of Work.

  1.    Cultiv8 and Collabor8 Platform

8.1       Subject to the Customer paying the applicable Subscription Fees, Elev8 shall allow access for the Customer’s named and authorised staff to the Cultiv8 and Collabor8 Platform and the Platform Content.

8.2       The named staff who are authorised to access the Cultiv8 and Collabor8 Platform may not share their login credentials with others.  Access to the Cultiv8 and Collabor8 Platform is personal and cannot be assigned to others.

8.3 To gain access to the Cultiv8 and Collabor8 Platform, the Customer must complete an Order and name the individuals to whom access will be granted on the Order. Additional terms relevant only to the Cultiv8 and Collabor8 Platform are set out in the Order. On completion of the Order, Elev8 will assign an order number to that Order. The Customer should use that order number in correspondence relating to the Services. Subject to the additional terms in the Order, Elev8 will make the Platform Content available online for streaming by the Customer once Elev8 accepts the Order.

8.4       The Platform Content may be updated or changed by Elev8 from time to time provided that the Platform Content continues to match the description of the Cultiv8 and Collabor8 Platform published by Elev8 from time to time.

  1.    Elev8 warranty

9.1       Elev8 warrants to the Customer that the Services will be provided using reasonable care and skill.  The Customer will give Elev8 a reasonable time to correct any deficiency in the Services before exercising any of its other rights or remedies.

9.2       Elev8 warrants that it will make the Program and the Cultiv8 and Collabor8 Platform available to the Customer in the manner identified in the relevant Order. Elev8 reserves the right, however, to:

(a)      amend the Services if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of the services;

(b)      take the Services off-line to deal with technical problems or make minor technical changes.

  1.    Customer's obligations

10.1       The Customer shall:

(a)      co-operate with Elev8 in all matters relating to the Services;

(b)      provide Elev8 with such information and materials as Elev8 may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects;

(c)      obtain and maintain all necessary licenses, permissions and consents that may be required for the Services before the date on which the Services are to start;

(d)      comply with all applicable laws;

(e)      comply with any additional obligations in the Order and/or Statement of Services.

10.2       If Elev8's performance of any of its obligations is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

(a)      without limiting or affecting any other right or remedy available to it, Elev8 shall have the right to suspend the performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Elev8's performance of any of its obligations;

(b)      Elev8 shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Elev8's failure or delay to perform any of its obligations as set out in this clause 9.2; and

(c)      the Customer shall reimburse Elev8 on written demand for any costs or losses sustained or incurred by Elev8 arising directly or indirectly from the Customer Default.

10.3   Elev8 shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Elev8 engages in connection with the Consulting Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Elev8 for the performance of the Consulting Services, and for the cost of any materials.

10.4   Unless stated otherwise in the Order or Statement of Work, Elev8 shall invoice the Customer:

(a)      the Subscription Fees annually in advance;

(b)      the Consulting Services Fees monthly in advance.

(c)      the Learning Services Fees on the Commencement Date of the Services, as stated on the relevant Order form

(d).      the Other Professional Services Fees on the Commencement Date of the Services, as stated on the relevant Order form

10.5      The Customer shall pay each invoice submitted by Elev8:

(a)      within 14 days of the date of the invoice; and

(b)      in full and in cleared funds to a bank account nominated in writing by Elev8, and time for payment shall be of the essence.

10.6       All amounts payable by the Customer under the Contract are exclusive of amounts in respect of general sales tax chargeable from time to time (“GST”). Where any taxable supply for GST purposes is made by Elev8 to the Customer, the Customer shall, on receipt of a valid GST invoice from Elev8, pay to Elev8 such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

10.7       If the Customer fails to make a payment due to Elev8 by the due date, then, without limiting Elev8's remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of Australia’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

10.8       All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1.    Fees and Payment

11.1       Elev8 reserves the right to increase the Subscription Fees and the Consulting Services Fees, Learning Services Fees and Other Professional Services Fees on an annual basis with effect from each anniversary of the Commencement Date on giving the Customer not less than 60 days’ prior written notice of the increase.

11.2       Unless stated otherwise in the Order or the Statement of Work, the Consulting Services and Learning Services Fees shall be calculated on a time and materials basis on the following basis:

(a)      the Consulting Services Fees shall be calculated per Elev8's daily fee rates, as set out in its current price list which will be provided at the Commencement Date;

(b)      the Learning Services Fees shall be calculated per Elev8's daily fee rates, as set out in its current price list which will be provided at the Commencement Date;

(c)      Elev8's daily fee rates for each individual are calculated based on an eight-hour day from 8.30 am to 5.30 pm worked on Business Days;

(d)      Elev8 shall be entitled to charge an overtime rate of 125% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Consulting Services outside the hours referred to in clause 11.2(c); and

11.3      Elev8 shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Elev8 engages in connection with the consulting Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Elev8 for the performance of the Consulting Services, and for the cost of any materials.

11.4      Unless stated otherwise in the Order or Statement of Work, Elev8 shall invoice the Customer:

(a)     the Subscription Fees annually in advance;

(b)     the Consulting Services Fees monthly in advance.

(c)      the Learning Services Fees on the Commencement Date of the Services, as stated on the relevant Order form

(d).      the Other Professional Services Fees on the Commencement Date of the Services, as stated on the relevant Order form

11.5      The Customer shall pay each invoice submitted by Elev8:

(a)     within 14 days of the date of the invoice; and

(b)     in full and in cleared funds to a bank account nominated in writing by Elev8, and time for payment shall be of the essence.

11.6      All amounts payable by the Customer under the Contract are exclusive of amounts in respect of general sles tax chargeable from time to time (“GST”). Where any taxable supply for GST purposes is made by Elev8 to the Customer, the customer shall, on receipt of a valid GST invoice from Elev8, pay toElev8 such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of theServices.

11.7      If the Customer fails to make a payment due to Elev8 by the due date, then, without limiting Elev8's remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4%a years above the Bank of Australia’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

11.8      All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1.  Intellectual property rights

12.1     Except as otherwise set out in a Statement of Work concerning Deliverables, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Elev8.

12.2     Elev8 grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Program Materials, Platform Content and Deliverables (excluding materials provided by the Customer) solely to receive and use the Services, the Program Materials, Platform Content and the Deliverables for its own, non-commercial, internal or personal use. In the case of the Program Materials and Platform Content, the Customer may not download, record or otherwise copy any of the Platform Content unless expressly permitted by Elev8. In the case of the Program Material and the Platform Content the licence to use those materials will terminate automatically on termination of the Services unless otherwise expressly stated. The licence to use Deliverables is perpetual.

12.3     The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 12.2.

12.4     The Customer grants each Elev8 Affiliate a fully paid-up, non-exclusive, royalty-free, transferable, perpetual, and irrevocable licence to copy and modify any materials provided by the Customer to Elev8 to provide the Services to the Customer. Elev8 shall be free to use general ideas and themes gained from providing the Services to the Customer for its internal and commercial business purposes.
12.5     If Customer contributes comment, content or material to Program or the Cultiv8 and Collabor8 Platform, the Customer as a result of this grants a non-exclusive, irrevocable, perpetual, worldwide licence to Elev8 and other customers who have access to use such comment, content or material for the purpose for which it was contributed.

12.6     The Customer agrees to respect the comment, content or material contributed to the Program or the Cultiv8 and Collabor8 Platform by other customers and to use such comment, content or material only for the purpose for which it was contributed.

12.7     Both parties are free to use the information and know-how gained and retained by their personnel during the supply and receipt of the Services provided that each party observes the confidentiality obligations and is not in breach of the trade secret laws. Elev8 shall not be required to restrict the work assignments of its representatives who have had access to Customer’s confidential information.

12.8     The Cultiv8 and Collabor8 Platform and the Program Material may contain links to third-party sites or material.  Elev8 is not responsible for such material or sites and gives no warranty in respect of or licence to use such content. 12.9 Elev8 may publish the Customer’s name and logo regarding any Services it has provided the Customer and any Customer endorsements of Elev8’s Services in its marketing materials in any media. This right shall survive termination or expiry of the Contract for any reason.

  1.  Data Protection and Data Processing

13.1     Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

13.2     The Customer warrants that it will not provide Elev8 with any personal data or information (as defined in the Data Protection Legislation) other than business contact information required for Elev8 to provide the Services and contact details of Participants unless Elev8 has expressly agreed to process such personal data under a Contract. Concerning any business contact information and contact details of Participants provided by the Customer to Elev8, the parties acknowledge and agree that for the Data Protection Legislation, they are each a data controller (where the controller has the meaning as defined in the Data Protection Legislation).

13.3     Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of any personal data to Elev8 for the duration and purposes of the Services.

13.4     Without prejudice to the generality of clause 13.1, where Elev8 has expressly agreed to act as a data processor of any personal data provided to it by the Customer per clause 13.2 (where the processor has the meaning as defined in the Data Protection Legislation), Elev8 shall, in connection with the performance of its obligations:

(a)      process that personal data solely to the extent necessary for the performance of the Services and only on the written instructions of the Customer (provided that such instructions are consistent with and relate to the services that Elev8 has agreed to provide under the Contract), unless Elev8 is required by applicable Data Protection Legislation to process personal data. Where Elev8 is relying on applicable Data Protection Legislation as the basis for processing personal data, Elev8 shall promptly notify the Customer of this before performing the processing required by the Data Protection Legislation unless the Data Protection Legislation prohibits Elev8 from so notifying the Customer;

(b)      ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored promptly after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c)      ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

(d)      not transfer any personal data outside of the European Economic Area unless Elev8 complies with its obligations under the Data Protection Legislation and one of the following conditions are fulfilled:

(i)        the European Commission has decided that the third country (or sector or territory in the third country) or international organisation to which the personal data is to be transferred ensures an adequate level of protection; or

(ii)       the Customer or Elev8 has provided appropriate safeguards concerning the transfer and the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies; or

(iii)      the transfer is covered by one of the derogations set out in Article 49 of the GDPR.

(e)      assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation concerning security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f)       notify the Customer without undue delay on becoming aware of a personal data breach;

(g)      at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by applicable Data Protection Legislation to store the personal data;

(h)      maintain complete and accurate records and information to demonstrate its compliance with this clause 13; and

(i)       permit the Customer (or its third-party auditor) to audit Elev8’s compliance with this clause 13 on giving reasonable notice to Elev8, provided that any third-party auditor mandated by the Customer to conduct such audit has entered into confidentiality undertakings which are satisfactory to Elev8 and the Customer uses reasonable endeavours to ensure that any such audit is designed to minimise disruption to Elev8’s business.

13.5     The Customer consents to Elev8 appointing third-party processors to process personal data. Elev8 confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement incorporating terms that are substantially similar to those set out in clause 13. As between the Customer and Elev8, Elev8 shall remain fully liable for all acts or omissions of any third-party processor appointed by it according to this clause 13. Elev8 shall provide the Customer with details of any proposed change in any relevant third-party processors at least ten (10) days before any such change.

13.6     Compliance with the California Consumer Privacy Act. If the Elev8 Affiliate is Elev8 LLC and Elev8 acts as Data Processor of Consumer Personal Information provided by Customer as Data Controller in connection with the Services, it shall, to such extent as it is the Data Processor, comply with all applicable obligations imposed by the California Consumer Privacy Act of 2018, California Civil Code §1798.100, et seq. (“CCPA”) and specifically agrees and acknowledges that as of January 1, 2020:

(a)      Data Processor shall upon request disclose and/or make available to Data Controller the categories and pieces of Consumer Personal Information collected by Data Processor in the preceding twelve (12) months and provide the requested Consumer Personal Information to Data Controller, free of charge, in a readily useable electronic format within ten (10) Business Days of Data Controller’s request.

(b) The Data Processor shall delete Consumer Personal Information or make such Consumer Personal Data available to the Data Controller for deletion, within ten (10) Business Days of the Data Controller’s request.

(c) The Data Processor shall not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate orally, in writing, or by electronic or other means, Consumer Personal Information to another Business or third party for monetary or other valuable consideration.

Capitalized terms used in this Section 13.6 shall have the meanings ascribed to them in the CCPA.

  1.  Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

14.1     Nothing in these Terms, the Order or the Statement of Work shall limit or exclude either Elev8 Affiliate's liability for:

(a)      death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)      fraud or fraudulent misrepresentation; or

(c)      any other liability that cannot be limited or excluded by applicable law.

14.2     Subject to clause 14.1, neither Elev8 Affiliate shall be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, breach of warranty or otherwise, arising under or in connection with the Services for:

(a)      loss of profits;

(b)      loss of sales or business;

(c)      loss of agreements or contracts;

(d)      loss of anticipated savings;

(e)      loss of use or corruption of software, data or information;

(f)       loss of or damage to goodwill;

(g)      punitive, exemplary or special damages; or

(h)      any indirect or consequential loss.

14.3     Subject to clause 14.1, Elev8's total liability for itself and the other Elev8 Affiliate, to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Services shall be limited to 100% of the total Subscription Fees or the Consultancy Services Fees paid by the Customer for the Services which are the subject of the liability.

14.4     Implied terms relating to the description, quality, and fitness for any goods delivered or concerning the time of performance or the duty to exercise reasonable care and skill concerning services are excluded from the agreement between the parties.
14.5     This clause 14 shall survive termination of the agreement to provide the Services.

  1.  Term and Termination

15.1     The agreement for and/or supply of the Services shall commence on the Commencement Date and shall continue for the Subscription Term or until the date or termination event set out in the Order or Statement of Work unless terminated earlier by either party per this clause 13.

15.2     Without affecting any other right or remedy available to it, unless stated otherwise in the Order or Statement of Work, Elev8 may terminate the Order, Statement of Work or Services at any time by giving the Customer not less than six months’ written notice.

15.3     Where the Order expressly allows the Customer to terminate access to the Program or the Cultiv8 and Collabor8 Platform on each anniversary of the Commencement Date or any other special date as outlined in the Order during the Subscription Term, the Customer may terminate the Services on any such anniversary or special date on giving Elev8 not less than 60 days prior written notice.

15.4     Without affecting any other right or remedy available to it, either party may terminate the Services with immediate effect by giving written notice to the other party if:

(a)      the other party commits a material breach of any term of the Order, Statement of Work or these Terms and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;

(b)      the other party enters into administration, provisional liquidation or any composition or arrangement with its creditors (other than to a solvent restructuring), is wound up (whether voluntarily or by order of the court, unless for a solvent restructuring), has a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

(c)      the other party suspends or ceases to carry on all or a substantial part of its business.

15.5     Without affecting any other right or remedy available to it, Elev8 may terminate the Services with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due on the due date for payment.

15.6     Without affecting any other right or remedy available to it, Elev8 may suspend the supply of Services if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.4(b) or 13.4(c), or Elev8 reasonably believes that the Customer is about to become subject to any of them.

  1.  Consequences of termination

16.1     Where Elev8 terminates any Subscription for convenience according to clause 13.2 it shall repay the Customer a pro rata portion of any Subscription Fees paid in advance for the period following the date of termination.

16.2     On termination of the Order, Statement of Work or the Services the Customer shall immediately pay to Elev8 all of Elev8's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Elev8 shall submit an invoice, which shall be payable by the Customer immediately on receipt.

16.3     On termination or expiry of the Order, Statement of Work or the Services each party shall return or destroy (to the extent reasonably practicable) all copies of the other party’s confidential information in its possession or control and which it does not need concerning the performance of any other Services which are still being delivered.

16.4     Termination or expiry of the Order, Statement of Services or the Services shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

16.5     Any provision of these Terms, the Order or Statement of Work that expressly or by implication is intended to come into or continue in force on or after termination or expiry Terms, the Order or Statement of Work shall remain in full force and effect.

  1.  General

17.1     Force majeure. Neither party shall be in breach nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control.  If Elev8 is prevented from performing the Services due to a cause beyond its reasonable control, it shall inform the Customer of the delay or failure and the likely extent and duration of it. If the cause persists and the delay or failure endures for more than 30 days, the Customer has the right to terminate the Services on notice.

17.2     Assignment and other dealings.

(a)      Elev8 may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the agreement between the parties.

(b)      The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the agreement between the parties without the prior written consent of Elev8.

17.3     Confidentiality.

(a)      Each party undertakes that it shall not at any time disclose to any person any confidential or proprietary information concerning the business, affairs, customers, clients or suppliers of the other party, which, in the case of the Customer, includes any confidential information concerning any other participants in the Elev8 Program or the Cultiv8 and Collabor8 Platform (“Confidential Information”), except as permitted by clause 17.3(b) and (c).

(b)      Each party may disclose the other party's Confidential Information:

(i)       to its employees, officers, representatives, subcontractors or advisers who need to know such information to carry out the party's obligations under the agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 17.3; and

(ii)       as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c)      Elev8 may disclose the Customer’s Confidential Information to the other Elev8 Affiliate provided that the receiving Elev8 Affiliate commits to observe the confidentiality provisions concerning that Confidential Information as set out in this clause 17.

(d)    Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under the agreement.

17.4     Entire agreement.

(a)      These Terms and the Order or Statement of Work constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.

(b)      Each party acknowledges that in entering into an Order or Statement of Work it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms, the Order or Statement of Work. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Order or Statement of Work.

(c)      Nothing in this clause shall limit or exclude any liability for fraud.

17.5     Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.6     Waiver. A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Terms, the Order or Statement of Work or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms, the Order or Statement of Work or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17.7     Severance. If any provision or part-provision of these Terms, the Order or Statement of Work is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms, the Order or Statement of Work.

17.8     Notices.

(a)      Any notice or other communication given to a party under or in connection with these Terms, the Order or Statement of Work shall be in writing and shall be delivered by hand or by pre-paid recorded delivery post at its registered office (if a company) or its principal place of business (in any other case); or sent by email (in the case of the Customer to the email address set out in the Order or Statement of Work and in the case of Elev8 to legal@Elev8group.io

b)      Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid recorded delivery post at the time recorded by the delivery service; or, if sent by email, on the next Business Day after transmission.

(c)      This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

17.9 Third-party rights: only applicable if the Elev8 Affiliate agreeing is Elev8 Limited.

(a)      Unless they expressly state otherwise, these Terms, the Order or Statement of Work do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms, the Order or Statement of Work.

(b)      The rights of the parties to rescind or vary these Terms, the Order or Statement of Work are not subject to the consent of any other person.

17.10   Sustainability and Ethical Practices. Elev8 uses sustainable work practices wherever possible including working in serviced offices that use sustainable and ethical products and services, using recycled paper, minimizing the use of print and other physical products by using electronic systems for document sharing, working from home whenever practical, encouraging the use of public transport when travelling on business and adopting practices to promote good corporate governance. Elev8 abides by laws and practices for ethical standards of corporate governance for employment matters and in working with suppliers including but not limited to the following laws: in Australia: AUS Modern Slavery Act 2018, The Working Time Regulations 1998 and The Working Time (Amendment) Regulations 2003.

17.11   Governing law. If the Elev8 Affiliate agreeing is Elev8 Limited, these Terms, the Order or Statement of Work, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed under the law of England and Wales. If the Elev8 Affiliate agreeing is Elev8 LLC, these Terms, the Order or Statement of Work, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed by the laws of the State of California.

17.12   Jurisdiction. Each party irrevocably agrees that:

(i) If the governing law is the law of Australia, the courts of Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms, the Order or Statement of Work or its subject matter or formation; and

(ii) if the governing laws are the laws of the State of California, the state and federal courts of California shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms, the Order or Statement of Work.