This Reseller Agreement (the “Agreement”) between Elastic Projects, Inc., a Delaware corporation with its principal place of business at 255 Golden Gate Ave., San Francisco, CA 94102 (“Elastic Projects”), and you. For the purposes of the Agreement, “you”, “your”, “Reseller” or “Customer” means the party identified as the reseller in the applicable Order Form. By executing an Order Form that references the Agreement, each party signifies that it has read, understands, and agrees to be bound by the Agreement. The Agreement shall be effective as of the date the first applicable Order Form is executed. The Agreement governs all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by the parties.
Elastic Projects hereby authorizes and appoints Reseller as a non-exclusive reseller of Elastic Projects’ version control and design workflow management software-as-a service platform as well as downloadable software that facilitates the use of the platform (collectively, the “Solution”).
To order a subscription to the Solution on behalf of a certain end user, Reseller must submit a purchase order that references this Agreement and such purchase order must be accepted by Elastic Projects (“Purchase Order”). Reseller may only sell the Solution to the end user customer identified in the Purchase Order (“End User”). The Purchase Order must also include the contact name, email address and location of the End User. The Solution may not be resold to any entity other than the End User under any circumstances. For the avoidance of doubt, the Solution is licensed and not sold. The End User’s subscription of the Solution will begin on the date stated in the applicable Purchaser Order. Unless either party provides notice of its intent not to renew at least sixty (60) days prior to the end of a subscription, the End User’s subscription will automatically renew for periods of one (1) year and Reseller will be obligated to pay for such subscription. Elastic Projects will send invoices to Reseller thirty (30) days prior to any renewal term.
Provision of the Solution
Upon acceptance of a Purchase Order, Elastic Projects will provide information to a single user of the End User to begin the registration process for the Solution. Any delay by an End User in registering for the Solution will not affect the subscription start date on an applicable Purchase Order.
Elastic Projects will be responsible for providing technical support to End Users. Reseller agrees to direct all support requests to Elastic Projects.
Elastic Projects will provide an invoice for the fees stated on the Purchase Order to Reseller upon acceptance of such Purchase Order; unless otherwise specified in the Purchase Order, Reseller will pay such invoice within thirty (30) days of the invoice date. For the avoidance of doubt, Reseller is free to determine pricing for the Solution that will be paid by the End User in its sole discretion. The amounts payable to Elastic Projects are exclusive of any sales, use, value added, or other applicable taxes, tariffs or duties; Reseller is solely responsible for payment of all such taxes except for any taxes based solely on Elastic Projects’ income. All payments will be made in United States dollars to an account or address specified by Elastic Projects. Overdue amounts will bear interest at a rate equal to one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Reseller will pay all costs and expenses, including reasonable attorneys’ fees, expended or incurred by Elastic Projects in connection with the collection of any delinquent amounts hereunder.
End User Agreement
Reseller will require that each End User agree to be bound by Elastic Projects’s terms of service, the current version of which is attached hereto as Exhibit A (“End User Agreement”). The foregoing may be accomplished by the End User executing an ordering document with Reseller specifying that the Solution is provided subject to (a) the End User Agreement, and (b) the terms of the ordering document between Reseller and the End User. Any modification to the End User Agreement must be agreed to in writing by Elastic Projects. Each End User is required to accept and be bound to the End User Agreement in order to receive access to the Solution. It is solely Reseller’s responsibility to ensure that each End User accepts and is bound by the End User Agreement.
Term and Termination
This Agreement will a terminate if (a) Reseller fails to pay Elastic Projects any amounts due hereunder within five (5) days after Elastic Projects provides Reseller with written notice of Reseller’s failure to pay, (b) either party materially breaches of the terms of this Purchase Order and such breach is not remedied by the breaching party within thirty (30) days after written notice by the other party of its intent to terminate, or (c) either party gives sixty (60) days written notice to the other party of its intent to terminate. Termination of this Agreement will not release Reseller from its obligation to pay any amount owed to Elastic Projects. All Purchaser Orders are non-cancelable and non-refundable.
Elastic Projects’ pricing and any non-public information regarding the Solution is Elastic Projects’ confidential information; Reseller will not use such information for any purpose other than to fulfill its obligations hereunder and will not disclose such information to any third parties.
Upon the End User’s acceptance or execution of the End User Agreement, Elastic Projects will grant the End User the warranties detailed in the End User Agreement. Warranties may only be granted directly by Elastic Projects to End Users. With respect to reseller, elastic projects disclaims all warranties, conditions or other terms, express or implied, statutory or otherwise, in the product including, without limitation the warranties of design, non-infringement, merchantability or fitness for a particular purpose.
Reseller will indemnify, defend and hold Elastic Projects harmless, at Reseller’s expense, any third party claim brought against Elastic Projects or its employees, officers, directors, agents, or licensors arising from or related to (a) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Reseller regarding the Solution, or (b) Reseller’s failure to obtain an End User’s acceptance of the End User Agreement, and Reseller will pay any amounts agreed to in a settlement signed by an authorized officer of Reseller or final judgments awarded to the third party claimant by a court of competent jurisdiction.
Limitation of Liability
Elastic Projects will not be liable with respect to any cause related to or arising out of this agreement for (a) indirect, special, incidental or consequential damages of any kind, or (b) any damages that exceed the total fees paid or payable by reseller during the twelve (12) month period immediately preceding the event which gives rise to such damages. These limitations will apply whether or not a party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.
This Agreement and all Purchase Orders are governed by the laws of the State of California without regard to choice of law provisions. Any judicial action or proceeding brought in connection with this Agreement will be brought in the city of San Francisco, California in the state or federal courts therein. The parties hereby consent to personal jurisdiction in the state of California as applicable in accordance with the foregoing. Notices to be given or submitted by either party to other under this Agreement will be in writing and will be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, and postage prepaid. Notices will be addressed to the addresses set forth in the preamble of this Agreement unless either party gives notice to the other. The parties acknowledge that (a) they are acting as independent contractors, (b) the parties will not be deemed to be agents of each other, and (c) no joint venture, franchise, partnership, agency, or other relationship will be created or implied by this Agreement. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If any provision is adjudged as such, its removal from the Agreement will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Neither party may transfer or assign this Agreement, or any portion thereof, without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Elastic Projects may assign this Agreement upon notice to Reseller in the event of a merger, or acquisition of all or substantially all of its assets, or for purposes of corporate restructuring. Any attempt to assign this Agreement in contravention of this section will be null and void. This Agreement, constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute the same instrument. This Agreement may only be amended, modified or supplemented by an agreement in writing by non-preprinted agreements clearly understood by both parties to be an amendment and signed by each party hereto. The headings in this Agreement are for convenience only and will not be considered a part of, or be deemed to affect the construction or interpretation of, any provision of this Agreement.
End User Agreement
This End User Agreement (“End User Agreement”) is entered into by and between you and Elastic Projects, Inc. (“Elastic Projects”). Specific business terms associated with your subscription to the Services (as defined in Section 1.1 below) are set forth in one or more ordering documents executed by the parties and referencing this Agreement (“Order Form”) and are hereby incorporated into these Enterprise Terms of Service by reference (collectively, the Enterprise Terms of Service and the Order Form shall be the/this “Agreement”). An Order Form may also be entered into between you and our authorized reseller (“Reseller”). For the purposes of the Agreement, “you”, “your”, or “Customer” means the party identified as the customer in the applicable Order Form. By executing an Order Form that references these Enterprise Terms of Service, each party signifies that it has read, understands, and agrees to be bound by these Enterprise Terms of Service. These Enterprise Terms of Service shall be effective as of the date the first applicable Order Form is executed. These Enterprise Terms of Service govern all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by the parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Subscriptions: Subject to Customer’s compliance with this Agreement, we will provide you with access to and use of our version control and design workflow management platform as well as downloadable software that facilitates the use of the platform (collectively, the “Services”). Subscriptions commence on the date that we make the Services available to Customer and continue for the Subscription Period (as stated on the applicable Order Form).
- Support: Elastic Projects will use commercially reasonable efforts to provide basic technical support for the Services to Customer via email (“Support Services”).
- Authorized Users: Individuals authorized by Customer to access and use the Services (each an “Authorized User”) may upload, submit, post, create, share, or otherwise make available through the Services: (a) videos, images, music, comments, questions, documents, spreadsheets, design files, and any other content or materials submitted, posted, or otherwise made available by Customer and its Authorized Users (“User Content”), including the names, voice, and/or likeness contained in the User Content; and (b) information relating to identified or identifiable natural persons (e.g. for the purposes of logging into the Services) (“Personal Data”). Collectively, User Content and Personal Data will be “Customer Information”. Customer will have the sole right and responsibility for managing its and its Authorized Users’ access to the Services and use of the Customer Information. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions of Authorized Users (e.g. giving certain Authorized Users administrative privileges), manage retention and export settings, transfer, assign, or consolidate organizations, and so on. Customer will also (i) inform Authorized Users of all of Customer’s own policies and practices that are relevant to the Authorized Users’ use of the Services and of any settings within the Services that may impact the processing of Customer Information; and (ii) obtain all rights, permissions and consents from Authorized Users and other Customer personnel or contractors that are necessary (x) to grant the rights and licenses set forth in this Agreement, and (y) for the lawful use and transmission of Customer Information and operation of the Services. Customer is responsible for all Authorized Users’ login credentials, regardless of whether such Authorized User is an administrator or otherwise. Accordingly, you are responsible for all resulting damages, losses, or liability if usernames and passwords are not kept confidential by you or your Authorized Users, including for actions taken on the Services by unauthorized third-parties logging into and accessing the Services through Authorized Users’ accounts.
- Early Release and Beta Products: Occasionally, we look for customers to help us test new services or new features of our existing services. If we wish for you to test early release or beta features/services, will either request whether you would like to test such early release or beta features/services in writing (email shall suffice) or these features will simply be identified within the Services as “beta” or “pre-release,” or “early-release” (or words or phrases with similar meanings) (each, an “Early Release Product”) and you (i.e., your Authorized Users that you give account management capabilities to) will have the option to either use them or refrain from using them. If you choose to use an Early Release Product, you understand and agree that Early Release Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.
Use of the Services and Restrictions.
- License to Use and Access: For the duration of the subscription, Elastic Projects grants to Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use, the Services in accordance with this Agreement and solely for the Customer’s own internal business purposes. To the extent that we may make software components available, via app stores or other channels, as part of the Services, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with this Agreement. There are no implied licenses granted to the Services, all of our rights not expressly granted by the license in this Section are retained by us.
- Acceptable Use Policy: Customer agrees, and will ensure that all Authorized Users agree, to comply with Elastic Project’s acceptable use policy, the current version of which is located at https://www.abstract.com/legal/acceptable-use-policy/ (“Acceptable Use Policy”); which may be updated by us from time to time by posting an updated version to the forgoing URL.
- Restrictions on Customer Information: Customer is responsible for the content of any Customer Information and the way Customer and its Authorized Users choose to use the Services to store or process any Customer Information. Customer is therefore also solely responsible for ensuring compliance with all applicable laws that may apply to Customer Information, including but not limited to privacy laws. Unless otherwise agreed to in writing by both parties, Customer may not submit any Customer Information that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children’s Online Privacy Protection Act (COPPA), or any other data which is considered to be sensitive. The Services are also not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old. We do not make any representations as to the adequacy of the Service to process your Customer Information or to satisfy any legal or compliance requirements which may apply to your Customer Information, other than as described herein.
- License Restrictions: Customer agrees that it will not, and will not allow third parties or Authorized Users to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Services, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Services, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Elastic Projects branding contained in or on the Services, (e) use the Services in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Dashboard, or (g) use or access the Services to build or support and/or assist a third party in building or supporting products or services competitive to the Services. Customer also agrees to comply, and will ensure that its Authorized Users comply, with any usage limitations of the Services contained on the Order Form.
- Responsibility: Customer must comply with this Agreement and is fully responsible for Authorized Users’ compliance with this Agreement. To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Information that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such Customer Information, except that we may review all conduct of Authorized Users in the Services, including the content of Customer Information, for the purpose of checking compliance with the terms of this Agreement, but we have no obligation to do so. If we believe there is a violation of this Agreement that can be remedied by Customer’s removal of certain Customer Information, we will, in most cases, ask Customer to take direct action rather than intervene. However, we reserve the right to take further action (including suspending your use of or access to the Services or removing certain Customer Information), when we deem it reasonably appropriate if Customer does not take suitable action itself, or if we believe Customer is violating applicable law or there is a credible risk of harm to us, the Services, Authorized Users, or any of our other customers. For example, if we reasonably believe that your Customer Information violates the Acceptable Use Policy or otherwise infringes on the intellectual property rights of any third party, we reserve the right to remove such Customer Information from the Services and/or suspend your access to the Services.
- Fees: Customer will pay for access to and use of the Services as set forth in the Order Form (“Fees”). All Fees shall be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. We may modify our Fees or introduce new fees in our sole discretion; Customer understands that revised or new fees may be required by changes in our business or offerings. Any new or revised fees will only become effective upon the renewal of the Initial Subscription Period or then-current Renewal Period (as stated on the applicable Order Form).
- Payment: We will invoice you for the Fees and any other applicable fees (e.g. bank transfer fees) in accordance with the Order Form. Customer agrees to pay all invoices submitted in accordance with this Agreement or the Order Form within thirty (30) days after the invoice date. All information that you provide in connection with a purchase or transaction or other monetary transaction with the Services must be accurate, complete, and current. If you have executed an Order Form with a Reseller, you will pay that Reseller in accordance with the terms of such Order Form; You will not be required to pay Fees or taxes to Elastic Projects. Notwithstanding the foregoing, you understand and agree that if you do not pay the Reseller in accordance with the Order Form you enter into with the Reseller, we will have the right to suspend your access to and use of the Services and terminate this Agreement.
- Taxes:Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
- Overdue Fees: If you fail to pay any Fees in accordance with this Section 3, we may suspend your access to the Services pending payment of such overdue invoices; provided that we give you notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue Fees in full. If Customer believes that we have billed you incorrectly, Customer must contact us no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
- Adding Authorized Users: Authorized Users that are given administrative permission by Customer may add Authorized Users at any time through the Services or by contacting us. Upon adding an Authorized User, we will invoice you for such Authorized User at the same price stated in the applicable, then-current Order Form at the pro-rated rate for the remainder of the then-current Initial Subscription Period or Renewal Period (also as stated on the Order Form). Customer agrees to pay such invoices in accordance with Section 3.2 above. The number of Authorized Users purchased cannot be decreased during the Subscription Period (as stated on the Order Form); the number of Authorized Users purchased may only be decreased upon renewal.
- New Services: During the Subscription Period (as stated on the Order Form) we may offer new services or modules that are not included on your current Order Form; you may choose to purchase new services or modules under a new Order Form but will not be required to do so.
Term and Termination
- Agreement Term: This Agreement will commence on the Agreement Effective Date and remain effective until all Order Forms have expired or have been terminated or this Agreement itself terminates. Termination of this Agreement will automatically terminate all Order Forms (including subscriptions). The Subscription Period of each Order Form shall be as stated on such Order Form.
- Auto-Renewal: Unless otherwise set forth in an Order Form, all Order Forms will automatically renew for additional periods equal to one (1) year or a term equal to the Initial Subscription Period (as stated on the applicable Order Form) whichever is shorter. Either party may choose not to renew an Order Form by giving the other party notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Period.
- Termination for Cause: Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
- Effect of Termination: If Customer terminates this Agreement as a result of Elastic Project’s uncured breach, we will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period (as stated on the applicable Order Form). Upon any termination for cause by us, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to us for the period prior to the effective date of termination. Except as otherwise set forth herein, upon any termination of this Agreement, all licenses granted hereunder shall immediately terminate and Customer will no longer have the right to access or use the Services. Following termination or expiration of Customer’s subscription, we will provide you with access to the Service for the sole purpose of exporting your Customer Information (except for comments made through the Services by Authorized Users) for a period of ninety (90) days. After such ninety (90) day period we have no obligation to maintain or provide any Customer Information and will thereafter, unless legally prohibited, delete all Customer Information in our systems or otherwise in our possession or under our control.
- Survival: Sections 2, 3, 4, 5, 6.2, 7, 8, 9, and 12 will survive any termination or expiration of this Agreement.
- Ownership of Elastic Projects Materials: Elastic Projects owns the Services and its technical documentation related to the Services (collectively the “Elastic Projects Materials”). Elastic Projects retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Elastic Projects Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Elastic Projects.
Customer's License to Us
- Ownership of Customer Information: As between Elastic Projects and Customer, Customer will own all Customer Information.
- License to Personal Data: Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services (including the transfer of Personal Data to us); (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
- License to User Content: By submitting, posting, storing, or otherwise making User Content available through the Services, Customer grants us, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), a royalty-free, sublicensable (as necessary to Subprocessors as described in Section 10.4 below), non-transferable (except permitted under Section 12.9), non-exclusive, worldwide license to use, host, store, reproduce, modify (e.g. to make sure your User Content displays properly through our Service), publish, list information regarding, translate, distribute (to the Authorized Users), perform (for Authorized Users), display (to Authorized Users), and make derivative works of the User Content in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services.
- Usage Data: As we operate the Services, we collect data pertaining to Authorized Users’ interaction with the Services, including information about the performance of the Services and measures of the operation of the Services (“Usage Data”). Notwithstanding anything else to the contrary herein: provided that the Usage Data is aggregated and anonymized, and no personal identifying information of the Customer is revealed to any third party, the parties agree that Elastic Projects is free to use the Usage Data in any manner. Elastic Projects owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give Elastic Projects the right to identify Customer as the source of any Usage Data. Notwithstanding anything to the contrary in this Agreement, we shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the Services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” includes, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another client.
- Feedback: You may from time to time provide suggestions, comments or other feedback with respect to the Services (“Feedback”). Elastic Projects may want to incorporate this Feedback into its Services and this clause provides us with the necessary license to do so. You hereby grant to us and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as we see fit, entirely without obligation or restriction of any kind, except that Elastic Projects will not identify you as the provider of such Feedback.
Warranties and Disclaimers
- Warranties: Elastic Projects represents and warrants that it will provide the Services and Support Services in a professional and workmanlike manner. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so. Customer represents and warrants that (i) it has obtained all rights and consents as may be required (by law or otherwise) to transfer, post, submit, and use any Customer Information as contemplated by this Agreement (including that it has the necessary consents and agreements to ensure that Customer Information submitted to, posted on, or otherwise created through the Services by any Authorized User is the property of Customer, regardless of whether the Authorized User from which it originated is an employee of Customer or otherwise); and (ii) the Customer Information and our use of it as contemplated by this Agreement and the Services will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights.
- Disclaimer: Except as expressly provided for herein, the services and all related components and information are provided on an “as is” and “as available” basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Customer acknowledges that we do not warrant that the services will be uninterrupted, timely, secure, or error-free. some jurisdictions do not allow the disclaimer of certain types of warranties, so the above disclaimers may not apply to you. This agreement grants specific legal rights, and customer and authorized users may also have other rights that vary from jurisdiction to jurisdiction. The foregoing disclaimers will not apply to the extent prohibited by applicable law.
Limitation of Liability
Elastic Projects will not be liable with respect to any cause related to or arising out of this agreement, whether in an action based on a contract, tort (including negligence and strict liability) or any other legal theory, however arising, for (a) indirect, special, incidental or consequential damages, (b) damages based on lost revenues or profits, loss of business or goodwill shall, loss or corruption of data or breaches in system security or (c) any damages that, in the aggregate, exceed the amounts paid or payable to elastic projects within the twelve (12) months immediately preceding the event that gave rise to the liability. These limitations shall apply whether or not a party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.
- Elastic Projects’ Indemnification: Elastic Projects will defend Customer and its Authorized Users, officers, directors, and employees against any third party claim or action brought against Customer to the extent based on the allegation that the Services infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and we agree to pay any settlements that Elastic Projects agrees to in a writing signed by Elastic Projects’ authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Services or portions or components of either that are (a) not provided by Elastic Projects, (b) combined with other products, processes or materials that are not reasonably contemplated by us or our technical documentation regarding the Services, or (c) where Customer’s use of the Services is not in accordance with this Agreement or our technical documentation regarding the Services.
- Customer’s Indemnification: Customer agrees to defend any third party claim or action brought against Elastic Projects and its officers, directors, and employees arising out of (a) the allegation that the Customer Information infringes such third party’s intellectual property rights, (b) Customer or any Authorized User’s violation of any applicable law, rule, regulation, or third-party right, including without limitation any right of privacy, (c) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (d) any third party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault), and Customer agrees to pay any settlements that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
- Procedures: Each party’s obligations under Sections 8.1 and 8.2 are conditioned on the party seeking to have a claim defended and settled (“Indemnified Party”) by the other party (“Indemnifying Party”) is conditioned on the Indemnified Party (a) providing the Indemnifying Party with prompt written notice of any claim, (b) granting the Indemnifying Party the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the Indemnifying Party in the defense or settlement of the claim at the Indemnifying Party’s expense. Notwithstanding anything else to the contrary in this Agreement, a party’s obligation to defend, indemnify and hold the other party harmless hereunder is limited to the Indemnifying Party’s payment for the cost of defense of the third party claim incurred by the Indemnifying Party and the payment of (i) any settlements agreed to by the Indemnifying Party in a writing signed by an officer of the Indemnifying Party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
- Options: If Customer’s use of the Services has become, or in Elastic Projects’ opinion is likely to become, the subject of any claim of infringement, Elastic Projects may at its option and expense, (a) procure for Customer the right to continue using and receiving the Services as set forth hereunder, (b) modify the Services to make it non-infringing, (c) substitute an equivalent for the Services or (d) if Elastic Projects, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
- Sole Remedy: Notwithstanding anything else to the contrary in this agreement, this section 8 states elastic projects’ entire responsibility and customer’s sole and exclusive remedy with respect to infringement of intellectual property rights under this agreement.
Confidentiality and Data Security
- Definition: Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
- Protection and Use of Confidential Information: The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, Subprocessors (as described in Section 10.4 below), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in this Agreement.
- Compelled Access or Disclosure: The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
- Applicability of Our Data Processing Addendum: We will process Personal Data only under the instruction and on your behalf; we will not process your Personal Data for other purposes. You acknowledge and agree that processing based on the provisions in this Agreement and in our technical product documentation qualify as your instructions. Personal Data includes “personal data” as that term is defined under the European General Data Protection Regulation (GDPR), and/or “personal information”, “personally identifiable information”, or such other similar term under applicable data privacy laws that applies to the person from which such data emanates. If you are established in, and any of the Personal Data that you submit to us contains the Personal Data of other individuals in, the European Economic Area and Switzerland, or if you are contractually obliged to comply with the GDPR, we will process any such Personal Data that you submit to us when you use the Services in accordance with the Data Processing Addendum, the current version of which is located at https://www.abstract.com/legal/data-processing-addendum/, which will be supplemental to the Agreement. If there is a conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum shall prevail. We reserve the right to make changes to our Data Processing Addendum (e.g. to address changes in applicable law). However, we agree that if we make material changes to our Data Processing Addendum that will materially decrease our security and privacy obligations contained therein, we will notify you of such changes before they go into effect.
- Our Transfer of Personal Data: We may transfer, store, and otherwise process Customer Information (including Personal Data) in databases and with Subprocessors located in the United States. If you choose to use the Services or allow Authorized Users to use the Services from within any region that has laws governing data collection and use that differ from United States law (including the European Economic Area), you agree that you have obtained the rights and consents necessary for us to transfer, store, and otherwise process such Customer Information to and in the United States or other locations that may not have the same data protection framework as the country from which you or your Authorized Users may be using the Services. When we transfer Personal Data to the United States or our other data facilities, we will protect it as described in this Agreement and, if applicable, the Data Processing Addendum.
- Subprocessors: The parties understand and agree that Elastic Projects uses certain third-party service providers to support the delivery of the Services that may store and process Personal Data about Authorized Users (e.g. Amazon Web Services) (each a “Subrocessor”). We currently use the following Subprocessors to support our delivery of the Services: https://www.abstract.com/help/legal-security/sub-processors/. Prior to engaging any Subprocessor, we perform diligence to evaluate their privacy, security and confidentiality practices, and we execute an agreement implementing applicable obligations to ensure, if applicable, that such Subprocessor is storing and processing Personal Data in conformance with our privacy and security obligations under this Agreement. As our business grows and evolves, the Subprocessors we engage may also change. We will notify you in writing of any additional or replacement Subprocessors, along with posting such updates to the URL above (or a successor site), before we appoint such Subprocessor. If you object to a Subprocessor, you have the right to object to such Subprocessor in writing within thirty (30) days of the date of our notice to you and, if we are unable to overcome such objection, terminate this Agreement upon notice to us. If the Customer’s objection remains unresolved sixty (60) days after it was raised, and we have not received any notice of termination, Customer is deemed to have accepted the Subprocessor.
- Safeguards: This Section 10.5 only applies if we have not entered into a Data Processing Addendum with you. The protection of Personal Data is important to us. Accordingly, we will maintain reasonable administrative, physical, and technical safeguards designed to protect Personal Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Personal Data by our personnel. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Personal Data, we will promptly notify Customer and will use reasonable efforts to cooperate with Customer’s investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not us) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. Customer (not us) bears sole responsibility for adequate security, protection and backup of Personal Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible, and Customer is fully responsible, for what Customer’s Authorized Users do with Personal Data. We are custodians of Personal Data.
Additional Terms for Mobile Applications
The following applies to any Services acquired from the Apple App Store (“Apple-Sourced Software”): Customer acknowledges and agree that this Agreement is solely between Customer and us, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Customer’s use of the Apple- Sourced Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software (if any); to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the Apple-Sourced Software or Customer’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple- Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the software. Customer acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Customer and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Customer’s license of the Apple-Sourced Software against Customer as a third- party beneficiary thereof.
- Publicity: Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time.
- Force Majeure: Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
- Relationship of the Parties: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- No Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
- Email Communications: Except as otherwise set forth herein, all notices under this Agreement will be provided by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to email@example.com, except for legal notices, such as notices of termination, which must be sent to firstname.lastname@example.org. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
- Amendment and Waivers: No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
- Severability: This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Assignment: Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law and Venue: This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of this Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
- Arbitration: For any dispute arising under this Agreement, the parties agree to attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco County, California, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
- Entire Agreement: This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
Additional Terms for Particular Types of Customers
U.S. Government Customers: If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms in this section apply.
- Use By or For the U.S. Government. The Services are a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Waiver of Certain Terms. The sections in the Agreement titled “Governing Law and Venue,” “Auto-renewal,” and “Customer’s Indemnification” are hereby waived to the extent they are inconsistent with federal law.
- No Endorsement. We agree that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on one of our Sites and uses our Services, will not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, we agree not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. We may list Customer’s name in a publicly available customer list on a Site or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
- State or Local Government Customers: If Customer is a state or local government, the terms in this section apply, but only to the extent the Services are being used in an Authorized User’s official capacity as a state or local government official. The sections in the Contract titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
- Healthcare Customers: If Customer is a Covered Entity as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), unless Customer has entered into a written agreement with us to the contrary, Customer acknowledges that we are not a Business Associate or subcontractor (as defined in HIPAA) and that the Services are not HIPAA compliant. Customer must not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Services. Further, we suggest that Customer advise Authorized Users directly that they should not transmit PHI through the Services. Customer agrees that we have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
- Education Professional Customers: If Customer is a school or educator in the United States and wants its students, who are over the age of 13, to use the Services, Customer is responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”) and all other law, rules, and regulations protecting the privacy of student data which may be applicable to Customer. Unless otherwise agreed to in writing, Customer may not submit Customer Information which contains personal information from a student’s educational record, as defined by FERPA. Customer is responsible for obtaining all necessary consents, if applicable, before permitting its users to submit information through the Services.
- U.S. Government Customers: If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms in this section apply.