Element451 Master Service Agreement
Updated June 23, 2026
This MASTER SERVICES AGREEMENT (the “Agreement”), by and between the entity (“Client”) named in the Element451, Inc. Service Order (the “Service Order”) and Element451, Inc. (“Company”) a Delaware corporation, effective as of the date set forth in the first Service Order between Client and Company (the “Effective Date”). Company and Client agree that this Agreement, including all exhibits hereto and the Service Order, represent the entire agreement between the parties with respect to the subject matter of the Agreement.
In consideration of Company’s engagement hereunder to perform the services and/or provide the products described herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following terms and conditions:
1. Definitions.
“Authorized User” means Client’s employees, consultants, contractors, agents (a) who are authorized by Client to access and use the Services (or any portion thereof) under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Client Data” means any and all data or information: (i) provided to Company by Client or its Authorized Users; or (ii) collected by Company on behalf of the Client in the course of its performance of the Services, including, without limitation, any Client Personal Data and Client Confidential Information.
“Client Personal Data” has the meaning set forth in Section 11.1.
“Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.
“Company Materials” means the Services, Company Systems and any and all other documents, materials, methods, processes, and other technologies and inventions, including technical or functional specifications, descriptions, requirements, plans, reports, information and/or data, that are provided or used by Company in connection with the Services or otherwise relate to the Services or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data but do not include Client Data.
“Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.
“Confidential Information” has the meaning set forth in Section 11.2.
“Force Majeure Event” means fire, flood, earthquake, elements of nature or acts of God, acts of war, government order or government mandate, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts or labor difficulties or any other cause beyond the reasonable control of a party.
“Initial Term” has the meaning set forth in Section 3.1.
“Renewal Term” has the meaning set forth in Section 3.1.
“Resultant Data” means data and information related to Client’s and Authorized Users’ use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Service Activation Date” means the date the Services are first available to Client and Company provides written notification (e-mail is sufficient) that the Services are available for Client’s use.
“Services” has the meaning set forth in the applicable Service Order between the parties.
“Service Order” means the written document(s) between Client and Company setting forth the Services to be provided by Company, the price to be paid by the Client to Company for such Services, the period of performance and such other terms and conditions consistent with this Agreement to which the parties have agreed. Over the course of the Term of this Agreement, the parties may agree to multiple Service Orders for different Services provided by Company and each Service Order shall be binding only upon execution by both parties. Any changes in the scope of a Service Order will be addressed in an amendment to such Service Order signed by both parties.
“Term” has the meaning set forth in Section 3.1.
2. Services.
2.1 Access and Use.
Client hereby subscribes to the Services and Company hereby grants Client a non exclusive, non-transferable (except in compliance with Section 17.6) right to access and use the Services during the Term, solely for its internal business purposes by Authorized Users in accordance with the terms and conditions herein. Company will provide Client with the Element451® platform agreed upon in an executed Service Order between the parties. Such platform and any other services expressly referenced in the Service Order is collectively referred to in this Agreement as the “Services.”
Company reserves the right, in its sole discretion, to make changes to the Services that it reasonably deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its Clients; (ii) the competitive strength of or market for Company’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided, however, if Company removes any material functionality from the platform as subscribed to by Client, Client may terminate its subscription by providing written notice to Company within 60 days of the removal of such functionality. For purposes of this Section, “material functionality” means a core feature of the Services as described in Exhibit A that Company has entirely discontinued, such that Client’s primary use case for the applicable Services is substantially impaired. In the event Client exercises such termination right, all fees paid or due and payable through the date of termination shall remain non-cancelable and non-refundable.
2.2 Onboarding; Training.
During the Term, Company will provide Standard Support as set forth in Service Order at no additional charge to Client. In the event Client requires support or maintenance services beyond Standard Support, Client may request Special Support, the terms of which, including any applicable fees, will be agreed to in writing between the parties. If purchased, Company will provide the training or onboarding services specified in Service Order.
2.3 Use Restrictions.
Client shall not, and shall not permit any other person to access or use the Services or other Company Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works of the Services or any Company Materials; (b) create, attempt to create, or grant permission to the source program and/or object program associated with any software component of the Services; (c) decompile, disassemble or reverse engineer any software component of the Services for any reason. (d) grant permission or access to the Services or any part thereof to any third party other than an Authorized User accessing the Services with his/her then-valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or transmit, or activate any code designed to modify, damage, delete, disable or disrupt the Services or the Company Systems or otherwise impede or harm the Services, Company Systems, or Company’s provision of services to any third party; (f) remove, delete, alter, or obscure any copyright or other proprietary rights notices from any Company Materials, including any copy thereof; (g) access or use the Services or any other Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; or (h) access or use the Services or other Company Materials for purposes of competitive analysis, or for the development, provision, or use of a competing software service.
2.4 Suspension or Termination of Services.
Company may, directly or indirectly, by any lawful means, suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Client or any Authorized User has failed to comply with any material term of this Agreement and the breach represents an imminent threat to the Company Systems, Confidential Information or the security of another user; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.4 does not limit any of Company’s other rights or remedies, whether at law, in equity, under this Agreement.
2.5 Service Level Agreement.
The parties agree that the delivery of Services shall be governed by the Service Level Agreement.
3. Term and Termination; Transition Services.
3.1 Term.
This Agreement shall commence on the Effective Date and shall continue for an initial period as described in the Service Order from the Service Activation Date (the “Initial Term”). Thereafter, any extension or renewal period (each a “Renewal Term”) will be as specified in the Service Order. (As used herein, each “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Unless otherwise agreed by the parties, the Service Activation Date will be no later than 30-days after the Effective Date.
3.2 Termination for Convenience.
After the Initial Term, Client may terminate this Agreement at any time upon providing at least ninety (90) days prior written notice to Company. All fees payable under this Agreement are non-cancelable and non-refundable. Client acknowledges that the Services are provided on a prepaid basis in accordance with the invoice schedule set forth in the Service Order, and any prepaid fees shall remain due and payable and will not be refunded in the event of termination for convenience.
3.3 Termination for Cause.
Either party may terminate this Agreement for cause immediately by giving written notice to the other party upon the occurrence of any of the following events: (i) if the other party ceases to do business, or otherwise terminates its business operations; (ii) if the other party breaches any material provision of this Agreement and fails to fully cure such breach within thirty (30) days of written notice describing the breach; or (iii) if the other party becomes insolvent, or seeks protection under any bankruptcy, receivership, trustee, creditor’s arrangement composition or comparable proceeding, or if any such proceeding is instituted against the other party and not dismissed within thirty (30) days.
3.4 Transition Services.
Company may, upon Client’s written request, provide reasonable transition assistance services to be mutually agreed upon by the parties to facilitate the orderly transition of the Services to Client or an alternate provider. Any such services will be provided subject to Company’s availability and billed at Company’s then-current professional services rates.
4. Fees; Payment Terms; Taxes; Fee Increases.
4.1 Fees and Payment Terms.
Client shall pay Company the fees set forth in the Service Order. Unless otherwise stated in the Service Order, the Company will invoice Client upon execution of this Agreement. Client agrees to pay any applicable amounts within the time period stated in the Service Order, or if no such time is stated, within thirty (30) days of Client’s receipt of a valid invoice from Company.
If upon receipt of any invoice, Client should have any objections, Client shall provide written notice of such objections to Company within 20 days of receipt of such invoice. Any outstanding invoice balance remaining 30 days past the invoice due date will be subject to a 1% monthly interest charge until the related invoice balance is paid. Company reserves the right to suspend performance of the Services until invoices outstanding for more than 60 days are paid in full.
4.2 Taxes.
In addition to the fees detailed in this Agreement, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Company’s income.
4.3 Fee Increases.
Company may increase annual fees by up to seven percent (7%) for any Renewal Term. If Client is not willing to accept such increase, Client may exercise its termination right set forth in Section 3.
5. Additional Responsibilities of Client Related to Use of the Services.
Client has and will retain sole responsibility for:
(a) all Client Systems and Client Data, including its content and use by its Authorized Users; (b) if Client uses any functionality of the Services to record conversations, disclosing such recording and securing any consents as required by applicable law; (c) all instructions provided by or on behalf of Client or any Authorized User in connection with the Services and all actions taken with its Authorized User identification code(s)/password(s), including any misuse or unauthorized use thereof; and (d) its and its Authorized Users’ compliance with any standard Terms of Use posted on the
Element451® platform, as amended or updated from time to time by Company in its sole discretion.
6. Intellectual Property Rights.
6.1 Company Materials.
All right, title, and interest in and to the Company Materials are and will remain with the Company. Client has no right, license, or authorization with respect to any of the Company Materials except as expressly set forth in Section 2. All other rights in and to the Company Materials are expressly reserved by the Company. It is understood that Client may have feedback, suggestions or comments that may, in Company’s sole discretion, be incorporated into the Services. Notwithstanding anything to the contrary herein, Client acknowledges and understands that Company shall own exclusively and in perpetuity any and all rights, title and interest in and to any enhancements suggested by Client. Client hereby assigns all of its right, title and interest in any such enhancements suggested to Company and Client will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this Section.
If and to the extent that Company incorporates the software and/or data of any third party in the Services, and use of such third-party software and/or data is not subject to the terms of a license agreement directly between Client and the third-party licensor, the license of Client to such third-party software and/or data shall be defined and limited by the license to Company by such third party. No rights are granted to Client other than the limited license expressly set forth in this Agreement.
Client specifically acknowledges that the licensors of such third-party software and/or data shall retain all ownership rights thereto.
6.2 Client Systems; Client Data.
All right, title, and interest in and to the Client Systems and Client Data are and will remain with Client and Company has no right, license, or authorization with respect thereto, except that Client hereby grants permission to the Company to use, reproduce, modify, display and publish the Client Data solely in connection with the Company’s provision of the Services in accordance with the terms of this Agreement.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties.
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 Additional Company Representations, Warranties, and Covenants.
Company represents, warrants and covenants to Client that: (a) Company will provide the Services in a professional and workmanlike manner and in accordance with reasonable professional standards for such services; and (b) In connection with providing the Services and carrying out its obligations contained in this Agreement, the Company shall comply with all applicable laws and regulations.
7.3 Additional Client Representations, Warranties, and Covenants.
Client represents, warrants, and covenants to Company that (a) Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; and (b) In connection with using the Services and carrying out its obligations contained in this Agreement, Client shall comply with all applicable laws and regulations including, without limitation obligations as a “controller” under the EU General Data Protection Regulation (the “GDPR”) and the California Consumer Privacy Act (CCPA) to, among other things, ensure valid consent is obtained where necessary and proper privacy notices and disclosures are provided to students and prospective students.
7.4 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2, ALL SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS.” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT OR BE ERROR FREE.
8. Infringement Claims of Third Parties.
Notwithstanding anything to the contrary in this Agreement: (a) If the Services and/or any other Company Materials are, or in Company’s sole discretion are likely to become, subject to a claim of infringement, Company, at its option and expense, shall either (i) procure for Client a license or a right to continue using the Services and/or the Company Materials; or (ii) modify the Services and/or the Company Materials to make them non-infringing in a manner that does not materially impair their functionality. If neither of the foregoing two options are reasonably available to Company then either party may terminate this Agreement by notice to the other party except for the indemnification obligations set forth in section 9. The foregoing shall be Client’s sole and exclusive remedy and Company’s sole and exclusive obligation with respect to any infringement claims relating to the Company Materials. (b) Company will have no obligation with respect to any actual or threatened infringement claim based in whole or in part upon (i) Client Systems, (ii) any enhancements, upgrades or modifications to Company Materials made by Client, or any party that Client authorizes, directs or permits to make such enhancements, upgrades or modifications, or (iii) Client’s or its Authorized Users’ failure to use the Company Materials in accordance with this Agreement or any documentation regarding their use provided by Company.
9. Indemnification.
9.1 Mutual Indemnification.
Client and Company each agrees to indemnify, defend and hold harmless the other party, its affiliates, officers, directors, employees and agents from any and all damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of any claim, demand, or action by a third party (collectively, “Losses”) in connection with any breach or alleged breach by such party of any representation, warranty, covenant or other obligations set forth in this Agreement.
9.2 Additional Indemnifications.
In addition, Client shall indemnify, defend and hold Company harmless from any and all Losses in connection with any claim that the Client Data is inaccurate, illegal and/or that use of the Client Data and/or Client Systems in connection with this Agreement infringes upon or violates the proprietary rights of any third party; and except as limited by Section 8(b), the Company shall indemnify, defend and hold Client harmless from any and all Losses in connection with any claim that the Company Materials (excluding Client Data) infringe upon or violate the proprietary rights of any third party.
9.3 Indemnification Procedure.
Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to this Section 9. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any such action on any terms or in any manner that adversely affects the rights of any Indemnitee, without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
10. Limitation of Liability.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES PAYABLE TO COMPANY HEREUNDER THE PRECEDING TWELVE (12) MONTHS UNDER THIS AGREEMENT. IN THE EVENT SUCH ACTION ARISES AT ANY TIME BEFORE THE COMPLETION OF THE INITIAL TWELVE (12) MONTHS OF THE TERM OF THIS AGREEMENT, THE FEES AND CHARGES DUE TO COMPANY AT SUCH TIME SHALL BE ANNUALIZED FOR PURPOSES OF CALCULATING THE MAXIMUM LIABILITY OWED FOR ANY DAMAGES HEREUNDER. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Privacy; Confidentiality.
11.1 Privacy Laws.
To the extent, in providing the Services for Client, Company receives, maintains or is afforded access in any way to any information relating to an identified or identifiable individual or any information that can be used to identify, locate or contact an individual, including a potential student of Client (“Client Personal Data”), including, without limitation: (A) first and last name; (B) a home or other physical address; (C) telephone number; (D) email address or online identifier associated with an individual; (E) cookie information, IP address, username and password, and usage and traffic data or profiles that is combined with any of the foregoing; and (F) financial information, healthcare information, credit or debit card data or any information defined as personal information (or similar) under any privacy or security law, Company shall at all times comply with all of the privacy and security laws applicable to Company as a service provider to Client that processes Client Personal Data, including without limitation, the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), the Health Insurance Portability and Accountability Act (HIPAA) of 1996, the Children’s Online Privacy Protection Act of 1998 (COPPA), laws and regulations of the U.S. Federal Trade Commission, the State of California and the Commonwealth of Massachusetts, including the Student Online Personal Information Protection Act (SOPIPA), the GDPR and any other state student privacy laws, rules or regulations. If required to comply with applicable law, the Parties agree to enter into a mutually agreeable data processing agreement (the “DPA”). The terms of the DPA will supersede and take precedence over any conflicting provision in this Agreement. Company acknowledges and agrees that any Client Personal Data that is collected, acquired, maintained, processed or stored by Company in connection with the provision of Services pursuant to this Agreement will be considered confidential and proprietary information of Client and Company will maintain all Client Personal Data in strict confidence and in accordance with this Agreement.
11.2 Confidential Information.
All of the parties’ other Confidential Information (as defined below) shall be deemed confidential and proprietary. The parties shall treat the Confidential Information of the other party as strictly confidential with at least the same degree of care as the receiving party uses for its own confidential information of similar importance, and in no event less than a reasonable degree of care. The parties will use the Confidential Information only for purposes authorized by this Agreement. The parties shall not disclose or provide any Confidential Information to any third party except as reasonably necessary to perform the Services, or as required by law, and the parties shall take reasonable measures to prevent any unauthorized disclosure of such Confidential Information by their respective employees, agents, contractors or consultants, including by maintaining appropriate nondisclosure agreements. As used herein, the term “Confidential Information” shall mean:
a. all information designated by either party as confidential and which is
disclosed to the other party;
b. Client Personal Data and Client Data;
c. Company Materials;
d. any information relating to know-how, markets, customers, products, trade secrets, patents, inventions, procedures, methods, designs, strategies, plans, development efforts, assets, liabilities, prices, costs, revenues, profits,
organization, employees, agents, resellers or business in general, or, the
algorithms, programs, source codes, user interfaces and organization of a party’s products or services; provided, however, Confidential Information shall not include any information that is in the public domain or
becomes publicly known through no fault of the receiving party, or is otherwise properly received by the receiving party from a third party without an obligation of confidentiality. In no way limiting the foregoing, the Company agrees that it shall not, without the Client’s prior written approval, collect, maintain, process, use or disclose Client Data for any purpose other than to provide the Services or otherwise comply with Company’s obligations under this Agreement.
In the event that a party believes it is required by law to disclose Confidential Information of the other party, such receiving party shall give the other party notice in a reasonable amount of time prior to the receiving party’s disclosure of Confidential Information to allow the other to protect its proprietary interest therein and shall use commercially reasonable efforts to minimize such disclosure and consult with and assist the other party in obtaining a protective order prior to such disclosure.
11.3 Return of Confidential Information.
Upon termination or expiration of this Agreement or upon Client’s earlier request, Company will: (i) provide Client with electronic access to all or any part of the Client Data in Company’s possession or control, (ii) promptly return to Client all or any part of such Client Data, and (iii) erase or destroy all or any part of such Client Data, in each case to the extent so requested by Client; provided, however, that Company may retain a copy thereof to the extent, and for so long as reasonably necessary to perform the Services and Company may also retain Client Data in its backups, archives, and disaster recovery systems until such Client Data is deleted in the ordinary course. Upon termination or expiration of this Agreement, each party shall promptly destroy all of the other party’s Confidential Information (other than Client Data), any copies or partial copies thereof and material containing the other party’s Confidential Information; provided, however, each party’s legal department may retain one copy of the Confidential Information and any such other material for archival purposes, subject to terms and conditions of this Agreement.
11.4 Injunctive Relief.
Each of the parties acknowledges that any use or disclosure of Confidential Information in violation of this Agreement may cause irreparable injury to the disclosing party for which other remedies at law would be inadequate, and each of the parties agrees that the disclosing party shall have the right to seek injunctive or other equitable relief as may be necessary or appropriate to prevent any use or disclosure of the Confidential Information in violation of this Agreement, and may also exercise such other rights and remedies as the disclosing party may have at law or in equity.
11.5 SMS Terms.
Element451 sends text messages to those that opt in. Messages we send include marketing and message frequency may vary. Message and data rates may apply. Text HELP or contact us at connect@element451.com for support. Text STOP to opt out of future messages at any time.
12. Security; Audits.
12.1 Safeguarding of Client Personal Data; Reasonable Security Measures. Company will implement and maintain industry standard physical, electronic and procedural safeguards to guard Client Personal Data. Such safeguards shall include appropriate procedures designed to: (i) protect the security and confidentiality of such information, (ii) protect against anticipated threats or hazards to the security or integrity of such information and (iii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Client or any student/prospective student of Client. Company will conduct annual risk assessments and update its security policies and procedures based upon its findings. Upon request by the Client, Company agrees to provide documentation sufficient to demonstrate Company’s compliance with the terms of this paragraph.
12.2 PCI Compliance.
Any software and services used by Company for processing financial transactions shall be compliant with the current standards established by the PCI Security Standards Council (www.pcisecuritystandards.org/index.html). As evidence of compliance Company will provide when requested, a current attestation of compliance.
12.3 Disaster Recovery.
Company will implement and maintain back-up procedures and systems, redundant systems and disaster recovery systems relating to the Services reasonably designed to protect against and minimize interruption to the Services. Company will conduct annual tests of its disaster recovery plan.
12.4 Audits.
Company may satisfy Client’s reasonable security diligence requests by providing, under appropriate confidentiality restrictions, Company’s then-current security documentation, certifications, third-party audit reports, SOC 2 Type II report or substantially similar report, penetration test summary, or other materials that Company generally makes available to similarly situated customers.
Client acknowledges that Company does not control the audit schedules, formats, or report contents of third-party hosting providers, infrastructure providers,
subprocessors, or data centers. Company will not be required to permit Client or Client’s representatives to conduct on-site audits of Company’s facilities, systems, data centers, personnel, subcontractors, or subprocessors unless expressly required by applicable law and agreed by Company in a separate written instrument.
Any materials provided under this Section are Company Confidential Information, are provided for Client’s internal compliance review only, and may not be disclosed to third parties except Client’s legal, security, or compliance advisors who are bound by confidentiality obligations at least as protective as those in this Agreement.
12.5 Security Breaches.
Company will provide notice to Client of any confirmed Security Incident that has resulted in the unauthorized acquisition or disclosure of Client Personal Data within the timeframes required by applicable law (any such incident, a “Security Incident”). Company will take commercially reasonable measures designed to investigate and remediate any Security Incident and to mitigate the risk of future Security Incidents. Company will cooperate with Client in Client’s compliance with applicable laws requiring notification to individuals affected by a Security Incident. To the extent a Security Incident results directly from Company’s material breach of its security obligations under this Agreement, Company will reimburse Client for its reasonable, documented notification costs, subject to the limitations of liability set forth in Section 10.
13. Insurance.
During the Term, Company shall, at all times, maintain: (a) Commercial General Liability insurance with a minimum limit of one million dollars ($1,000,000.00) per occurrence with an aggregate limit of two million dollars ($2,000,000.00); (b) Automobile Liability insurance in an amount not less than $1,000,000 per occurrence for hired autos and non-owned autos only; (c) Workers Compensation insurance, in such amount as may be required by the laws of the State of North Carolina and employers’ liability insurance, and d) Technology Errors and Omission Cyber and Multi Media Liability insurance covering actual or alleged acts, errors or omissions committed by Company, its agents or employees. The policy shall expressly provide, but not be limited to, coverage for the following perils: unauthorized use/access of a computer system, defense of any regulatory action involving a breach of privacy; failure to protect confidential information (personal and commercial information) from disclosure, notification costs, whether or not required by statute. The Computer Security and Privacy Liability policy(s) shall have limits of liability of at least five million dollars ($5,000,000) in the aggregate.
14. Non-solicitation.
During the Term and for one year thereafter, Client shall not, and shall not assist any other party to directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person) for employment or engagement as an independent contractor any person who is then, or within the prior twelve months was, employed or engaged by Company and involved in any respect with the performance of this Agreement. In the event Client engages any person in violation of this Section 14, Client will pay Company liquidated damages equal to 50% of the annual compensation paid by Company to the applicable employee or contractor.
15. Notice.
Each party giving or making notice, request, demand or other communication (“Notice”), pursuant to this Agreement shall give the Notice in writing by personal delivery, facsimile, email, prepaid Registered or Certified mail, return receipt requested, or prepaid nationally recognized overnight courier. A Notice shall be deemed to be received by the addressee: one (1) business day after sending, if sent by personal or overnight delivery service, facsimile, email or other electronic means; and three (3) business days after mailing, if sent by certified or registered mail.
Each party giving a Notice shall address the Notice to the appropriate person at the address listed in the Service Order or another address as designated by a party in a Notice pursuant to this Section.
16. Governing Law and Dispute Resolution.
This Agreement shall be governed by the laws of the state as agreed to in the Service Order, without regard to any provisions pertaining to choice of law. Any dispute between the parties arising from or relating to this Agreement shall be subject to binding arbitration according to the commercial arbitration rules of the American Arbitration Association (“AAA”). Selection of one neutral arbitrator by the parties shall be from the AAA Panel list in accordance with the appointment Rules of the AAA. The arbitration will be held in a location mutually agreed upon by the parties, or if no such location can be agreed to, then as appointed by the duly selected arbitrator. Each party shall bear its own expenses associated with the arbitration; the parties shall equally share the filing and other administrative fees of the AAA and the expenses of the arbitrator.
17. Miscellaneous.
17.1 Entire Agreement.
This Agreement, including the Exhibits and any Service Orders between the parties, sets forth the entire agreement between the parties with respect to the
matters addressed herein. It supersedes any prior oral or written communications between the parties with respect to the matters addressed herein. This Agreement may be modified or amended only by a writing signed by both parties.
17.2 Severability.
If any part of this Agreement is found to be invalid, all other provisions will remain in full force and effect.
17.3 Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17.4 Subcontractors.
Company shall be permitted to engage third parties as subcontractors in connection with the Services. Company shall remain fully responsible for such parties’ compliance with the terms and conditions of this Agreement.
17.5 Force Majeure.
To the extent that either party’s performance of any of its obligations (other than payment obligations) pursuant to this Agreement is prevented, hindered or delayed, directly or indirectly, by a Force Majeure Event, and such non-performance could not have been prevented by reasonable precautions, then the non-performing party shall be excused from any further performance of those obligations for so long as such Force Majeure Event continues. The party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other party by telephone of the occurrence of the Force Majeure Event and describe the Force Majeure Event in reasonable detail.
17.6 Assignment.
Neither party shall have the right to assign this Agreement without the prior written consent of the other party, except that: (i) Company may, without Client’s consent, assign this Agreement to any of its affiliates; and (ii) either party may, without the consent of the other party but upon prior notice, assign this Agreement to the surviving corporation with or into which such party may merge or consolidate, or an entity to which such party transfers all, or substantially all, of its voting securities or assets.
17.7 Survival.
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 6, 7.4, 9, 10, 11, 14, 15, 16 and 17.
17.8 Publicity.
Unless otherwise indicated on a Service Order, Client agrees that Company may use Client as a reference and/or identify Client as a Company customer to third-parties; provided that such reference or disclosure does not reveal any Confidential Information or specifics about the Agreement or the relationship. Client further agrees that Company may use Client’s name, mark and/or logo on Company’s website or other marketing materials listing Company’s customers; provided that in the event Client objects to any such use, Company agrees to promptly modify or remove such use. All rights arising from the use of Client’s name, mark and/or logo will inure to the benefit of Client and Client will retain all ownership therein.
18. Piggyback Clause.
18.1. Scope of Piggybacking.
Element451 agrees to make the Services available to other accredited institutions of the STATE Public Higher Education System (“Affiliated Institutions”) on the terms and conditions of this Agreement. Any Affiliated Institution that desires to acquire the Services under this clause shall enter into a separate contractual agreement with the Company. Such agreements shall reference this Agreement and specify any more favorable terms offered to the Affiliated Institution. The Affiliated Institution’s access to the Services will be governed by its agreement with Company.
18.2. Liability and Payment.
Each Affiliated Institution will assume full responsibility for payment and liability related to its separate contractual agreement with the Company. Client shall bear no responsibility for the obligations, financial or otherwise, of any Affiliated Institution.
Service Level Agreement
1. System Performance and Compatibility
Company will use commercially reasonable efforts to support the Services on the then current and immediately prior major versions of Google Chrome, Microsoft Edge, Mozilla Firefox, and Apple Safari, running on vendor-supported versions of Windows, macOS, iOS, and Android. Company may designate one or more browsers as recommended browsers based on compatibility with modern web standards.
Company does not warrant that the Services will operate on all browsers, devices, operating systems, browser extensions, accessibility tools, mobile devices, or Client managed configurations. Issues arising from unsupported browsers, outdated operating systems, device limitations, browser extensions, local security software, network restrictions, or Client-side configurations are excluded from the Availability Commitment and support response targets.
Element451® offers an unlimited number of college/university users and administrators the ability to deploy communications and collect information, to serve the purpose of recruiting potential students for the college/university. The tiered pricing structure set by the Company is based upon number of student applications.
All vanity uniform resource locators (URLs) created as part of the Element451® installation shall be Client property and shall be registered in Client’s name.
2. Availability Commitment: 99.9% Uptime
The Company will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99.9 percent during each calendar month, subject to the SLA Exclusions. Client’s sole and exclusive remedy, and Company’s entire liability, for any failure to meet this Availability Commitment shall be the Service Credits set forth in this Exhibit B.
Definitions
“Maintenance” means Scheduled Maintenance and Emergency Maintenance.
“Scheduled Maintenance” means planned maintenance, updates, upgrades, infrastructure work, or other service modifications performed by Company. Company will use commercially reasonable efforts to perform Scheduled Maintenance during low-usage periods, generally between 10:00 p.m. and 7:00 a.m. Eastern Time, and to provide advance notice where practicable.
“Emergency Maintenance” means maintenance required to address an actual or reasonably suspected security vulnerability, data integrity risk, service availability risk, legal or compliance requirement, third-party dependency issue, or other condition that Company reasonably determines requires prompt action. Emergency Maintenance may be performed at any time, with or without prior notice.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Services were Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusion, including Maintenance.
“SLA Exclusions” refers to any unavailability of Services, or any other Services performance issue, that results directly or indirectly from: Maintenance; a suspension of Services in accordance with the Agreement; factors outside of Company’s reasonable control, including any Force Majeure Event, Internet connectivity issues, or problems beyond the demarcation point of the Element451 network; and/or failure, interruption, outage, or other problem with any equipment, software or other technology of Client or any third party (other than third party equipment, software or technology within Company’s direct control); use of beta, preview, alpha, early access, or similarly designated features; Client’s misuse of the Services, including violations of documented rate limits, integration constraints, or acceptable use policies; downtime affecting only sandbox, staging, test, or non production environments; failures caused by services contracted by Client directly (including, without limitation identity providers, AI or model providers, or SIS/CRM systems); failures resulting from changes to Client Systems, custom integrations, or modifications made by Client or its agents; emergency maintenance and security related interventions; denial of service or similar attacks; and any period during which Client is in material breach of this Agreement, including non-payment of fees.
“Unavailable” and “Unavailability” refer to times when the production instance of the core Element451 platform is inaccessible to a material portion of Authorized Users due to a failure within Company’s direct control, as measured by Company’s monitoring systems, which shall be authoritative. Unavailability excludes: degraded performance; individual feature issues; sandbox, staging, and other non-production environments; Client-side configuration, network, or browser issues; third-party services, APIs, dependencies, and integrations consumed by or interoperating with Element451 (including, without limitation, communication delivery providers such as email and SMS gateways, AI and model service providers, identity providers, and SIS/CRM integrations); and Client-built or Client-configured API integrations with Element451.
3. Service and Support Commitments
Client is responsible to provide a reasonably detailed description of the issue and browsing environment, in order for the issue to be resolved in a timely manner. Failure to do so may result in extended resolution times.
Support claims will be segmented based on severity level, and response time will depend on which category the claim falls into as outlined below.
Company reserves the right to change the severity level reported by Client in either direction, in order to properly resolve the issue.
Company will provide support between the business hours of 9:00 AM and 5:00 PM Eastern Standard Time on Company’s normal business days. This includes telephone and email customer service support to assist Client in resolving problems, obtaining clarification relative to our services and reporting suspected defects or errors in our services.
The Company will diligently work for the prompt resolution of defects and errors in the Services, and will respond to Client by using a dedicated contact telephone number or email address for each support call. In the case of a system outage condition attributable to the Company, Company may utilize other means of communication for reporting of errors and conditions.
Company will investigate and use commercially reasonable efforts in
accordance with the following schedule:
Severity 1: A production outage affecting all or substantially all Authorized Users where (a) no commercially reasonable workaround is available, and (b) the outage is caused by a failure within Company’s direct control. Severity 1 also includes confirmed system-wide data loss or corruption within Company-controlled systems. Issues caused by, or requiring remediation of, third-party software, services, dependencies, or vendors are not Severity 1, regardless of severity of impact, except to the extent the matter is within Company’s direct control.
Severity 2: A material defect in core Services functionality that significantly impairs Client’s ability to use the Services for their intended business purpose, where no commercially reasonable workaround is available, and the defect is caused by a failure within Company’s direct control.
Severity 3: A non-critical defect, degraded function, or issue for which a reasonable workaround exists, or that Client can wait to have addressed in a future release.
Severity 4: Questions, cosmetic issues, or feature enhancement requests.
Security Incidents are governed by Section 12.5 and are not subject to the support severity levels, response targets, restoration targets, or Service Credits set forth in this Exhibit B.
Company will use commercially reasonable efforts to provide an initial response to a Severity 1 issue within two (2) hours of Client's submission of a properly documented support request, on a twenty-four (24) hour, seven (7) day per week basis. Following Company's confirmation and reproduction of the issue, Company will use commercially reasonable efforts to restore Service availability or provide a workaround within eight (8) business hours. A workaround that materially restores Client's ability to use the Services shall constitute restoration for purposes of this target, and Company may continue to work toward a permanent fix in accordance with its release management processes. Target response times and target restoration times are not guaranteed resolution times, and Company's failure to meet a target response or restoration time will not constitute a breach of this Agreement..
Company will use commercially reasonable efforts to provide an initial response to a Severity 2 issue within four (4) business hours of Client's submission of a properly documented support request. Following Company's confirmation and reproduction of the issue, Company will use commercially reasonable efforts to provide a workaround, mitigation, or correction within two (2) business days. A workaround that materially restores the affected functionality shall satisfy this target, and Company may continue to work toward a permanent fix in accordance with its release management processes. Target response times and target restoration times are not guaranteed resolution times, and Company's failure to meet a target response or restoration time will not constitute a breach of this Agreement.
Company will use commercially reasonable efforts to provide an initial response to a Severity 3 issue within two (2) business days of Client’s submission of a properly documented support request. Severity 3 issues will be addressed in a future release in accordance with Company’s release management processes, the contents and prioritization of which are within Company’s sole discretion. Company makes no commitment as to the specific release in which any Severity 3 issue will be remediated.
Company will make an initial response to Severity 4 items within five business days of Company’s receipt of written request. Severity 4 items are not subject to a resolution commitment. Enhancement requests are reviewed as inputs to Company’s product roadmap, the contents and prioritization of which are within Company’s sole discretion. Company reserves the right to decline to make enhancements in its sole discretion.
Company reserves the right to decline to make enhancements in its sole discretion. Client agrees to appoint one person as main point of contact for the communication of bugs and errors to Company and for the receipt of bug and error fixes, workarounds and updates, if any. Additionally, Client may appoint another person as a backup of the principle contact.
Service Credit Schedule. If Company fails to meet the Availability Commitment in any calendar month, Client shall be entitled to a Service Credit in accordance with the following schedule, applied as a credit against fees payable at the next invoice date, or if no invoice is due within ninety (90) days, as a credit against fees due at renewal. For purposes of this schedule, "affected monthly subscription fees" means one-twelfth (1/12) of the annual subscription fees attributable to the affected service:
● Monthly Uptime Percentage equal to or greater than 99.9%: no Service Credit (SLA met).
● Monthly Uptime Percentage less than 99.9% and equal to or greater than 99.0%: Service Credit equal to five percent (5%) of the affected monthly
subscription fees.
● Monthly Uptime Percentage less than 99.0% and equal to or greater than 95.0%: Service Credit equal to ten percent (10%) of the affected monthly subscription fees.
● Monthly Uptime Percentage less than 95.0%: Service Credit equal to twenty-five percent (25%) of the affected monthly subscription fees.
Credit Cap and Form. The aggregate Service Credits payable to Client in any calendar month shall not exceed twenty-five percent (25%) of the affected monthly subscription fees for such month calculated as one-twelfth (1/12) of the applicable annual subscription fees attributable to the affected service. Service Credits are applied against future invoices only and shall not be paid as a cash refund. Service Credits are available only to Clients in good standing and current on all payment obligations.
Claim Procedure. To receive a Service Credit, Client must submit a written claim to Company within thirty (30) days following the end of the calendar month in which the alleged failure occurred. The claim must include reasonable detail regarding the alleged failure, including the dates and times affected. Failure to submit a timely claim constitutes Client’s waiver of the right to receive a Service Credit for that month. Company’s monitoring systems shall be authoritative for purposes of determining Monthly Uptime Percentage and Service Credit eligibility.
Sole and Exclusive Remedy. The Service Credits set forth in this Exhibit B are Client’s sole and exclusive remedy, and Company’s sole liability, for any failure to meet the Availability Commitment, target response times, or any other service level set forth in this Exhibit B. Target response times, investigation targets, and defect-resolution efforts do not give rise to Service Credits, refunds, termination rights, or damages. For the avoidance of doubt, no failure to meet a service level set forth in this Exhibit B shall constitute a material breach of the Agreement.
Client Cooperation; Clock Start and Pause. All response and investigation timeframes set forth in this Exhibit B begin only after Company receives a properly submitted support request through Company’s designated support channels containing reasonable detail sufficient to enable Company to investigate the issue, including a description of the issue, browsing or environment information, steps to reproduce, and any error messages. All such timeframes are paused while Company is awaiting information, access, logs, approvals, test data, or other cooperation reasonably required from Client.
Root Cause Analysis. For confirmed Severity 1 incidents caused by Company controlled systems, Company may, at its discretion, provide Client with a commercially reasonable incident summary upon Client’s written request. Any such summary is provided for informational purposes only, is Confidential Information of Company, and shall not constitute an admission of fault or liability.
Service Contact Information and Hours of Support:
Regular: Monday through Friday, 9am to 5pm EST excluding U.S. company holidays
Phone: 919-910-0435
Email: support@element451.com
