Elastic Swiftype App Search

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This Elastic Swiftype App Search Cloud Subscription Agreement, including all documents at referenced URLs (this "Agreement") is entered into by and between Elasticsearch AS, with its principal place of business located at Postboks 539 1373 Asker, Norway ("Elastic"), and the entity identified as the "Customer" ("Customer") on the signature block of the Elastic Order Form executed by Customer or the "ship to" entity in an Elastic Order Form executed by a Reseller, as applicable, as of the date specified in such Order Form ("Effective Date").

  1. 1 DEFINITIONS Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
    1. 1.1 "Affiliate" means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where "control" means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
    2. 1.2 "Elastic Swiftype App Search" means Elastic's Swiftype App search software-as-a-service located at https://app.swiftype.com/as.
    3. 1.3 "Elastic Swiftype App Search Premium" means the premium Subscription Level of Elastic Swiftype App Search.
    4. 1.4 "Elastic Swiftype App Search Pro" means the pro Subscription Level of Elastic Swiftype App Search.
    5. 1.5 "Elastic Swiftype App Search Standard" means the standard Subscription Level of Elastic Swiftype App Search.
    6. 1.6 "Eligible Features and Functions" means those features and functions of Elastic Swiftype App Search that are eligible for use with respect to a given Subscription Level.
    7. 1.7 "Order Form" means an ordering document pursuant to which Customer, or a Reseller acting on Customer's behalf, purchases a Subscription under this Agreement.
    8. 1.8 "Qualifying PO" means a purchase order issued by customer for the purpose of purchasing a Subscription, which (i) references the number of an applicable Order Form provided to Customer by Elastic and (ii) clearly states the purchase order is subject to the terms and conditions of this Agreement.
    9. 1.9 "Reseller" means a third party authorized by Elastic to promote and resell Subscriptions.
    10. 1.10 "Resources" means quantity of engines, documents and API Operations, where an "API Operation" is any API request made on behalf of an account, including but not limited to document creation, search queries, engine creation, document updates and clickthrough tracking.
    11. 1.11 "Subscription" means the right of Customer to access and use Elastic Swiftype App Search and receive applicable Support Services, for a fixed period of time.
    12. 1.12 "Subscription Level" means Elastic Swiftype App Search Standard, Elastic Swiftype App Search Pro or Elastic Swiftype App Search Premium, as indicated on an applicable Order Form. The Elastic Swiftype App Search Subscription Level purchased by Customer determines the specific Support Services that Customer is entitled to receive, and the Eligible Features and Functions of Elastic Swiftype App Search that Customer is entitled to use, as more fully described at https://www.swiftype.com/app-search/pricing.
    13. 1.13 "Subscription Term" means the period of time for which a Subscription is valid, as further described in Section 10.1 of this Agreement.
    14. 1.14 "Support Services" means maintenance and support services provided to customers purchasing Subscriptions to Elastic Swiftype App Search, as more fully described in the Support Services Policy.
    15. 1.15 "Support Services Policy" means Elastic's support services policy for the Elastic Swiftype App Search Standard, Pro and Elastic Swiftype App Search Premium Subscription Levels located at https://www.elastic.co/support/welcome/swiftype. Elastic reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Elastic agrees not to do so in a manner that materially diminishes the level of Support Services during the Subscription Term. The effective date of each version of the Support Services Policy will be stated therein, and Elastic will retain an archived copy of each version that will be made available to Customer upon request. The Support Services Policy is hereby incorporated into these terms and conditions by this reference.
  2. 2 SERVICES GENERALLY; AGREEMENT SCOPE
    1. 2.1 Account.
      1. (a) Registration. In order to use Elastic Swiftype App Search, Customer must first register for one or more account(s) (each an "Account"). Communications from Elastic to Customer regarding Elastic Swiftype App Search will be sent to the email address registered with each Account.
      2. (b) Customer Security Obligations. Customer is responsible for maintaining the security of the login credentials, security-keys and the correct configuration of access control lists for Customer's Accounts. Customer is fully responsible for all activities that occur under its Accounts. Customer agrees to immediately notify Elastic of any unauthorized use of its Accounts, use of an Account in violation of this Agreement or any other breaches of security related to its Account(s), of which Customer becomes aware.
    2. 2.2 Subscriptions.
      1. (a) Subscription Orders. Orders for Subscriptions may be placed by Customer through the (1) execution of Order Forms with Elastic, setting forth the (i) Elastic Swiftype App Search Subscription Level, (ii) Subscription Term, and (iii) applicable fees or (2) issuance by Customer of a Qualifying PO, which will be deemed to constitute, for purpose of this Agreement, the execution by Customer of the Order Form referenced on such Qualifying PO. Each executed Order Form is incorporated by reference into, and shall be governed by the terms and conditions of, this Agreement.
      2. (b) Upgrading Subscription Levels. Customer may upgrade the Subscription Level of an existing Subscription through execution of a new Order Form or issuance of a Qualifying PO. Fees applicable to upgraded Subscription Levels will be invoiced in accordance with Section 4 below.
    3. 2.3 Subscriptions Purchased Through Resellers. The parties agree that Customer may purchase through Resellers Subscriptions that are governed by this Agreement. Where Customer purchases a Subscription through a Reseller, the Reseller will enter into an Order Form with Elastic for the purchase of a Subscription that shows Customer as the "ship to" party and Reseller as the "bill to" party, and Reseller and Customer will enter into a separate agreement setting forth the fees to be paid by Customer to Reseller for such Subscriptions, as well as any other terms or conditions that apply between them. Elastic hereby agrees that, subject to receiving payment from the Reseller, it shall be responsible to Customer, pursuant to the terms and conditions of this Agreement, for providing Elastic Swiftype App Search and any Support Services under any such Subscription. Customer hereby acknowledges that Elastic will not be responsible for the obligations of any Reseller to Customer under such separate agreement, for the acts or omissions of Reseller, or for any third party products or services furnished to Customer by any Reseller. For the avoidance of doubt, Section 4 below will be of no effect where Customer purchases a Subscription through a Reseller, as payment and taxes will be addressed in the agreement between Reseller and Customer.
    4. 2.4 No Other License; No Assignment of Rights. This Agreement grants Customer a limited right to use Elastic Swiftype App Search. Nothing in this Agreement shall be understood to transfer from Elastic to Customer any intellectual property rights, and all right, title and interest in and to Elastic Swiftype App Search and Support Services will remain (as between the parties) solely with Elastic or its third party suppliers. "Elastic" and all other trademarks, service marks, graphics and logos used in connection with Elastic Swiftype App Search and the Support Services are trademarks or registered trademarks of Elastic or Elastic's third party suppliers. Other trademarks, service marks, graphics and logos used in connection with the Elastic Swiftype App Search may be the trademarks of other third parties. Elastic grants to Customer no right or license to reproduce, or otherwise use any Elastic or third-party trademarks under this Agreement.
  3. 3 PROVISION OF ELASTIC SWIFTYPE APP SEARCH AND SUPPORT SERVICES
    1. 3.1 Provision of Elastic Swiftype App Search. Elastic will provide to Customer, and Customer is hereby granted the right to access and use, Elastic Swiftype App Search at the applicable Subscription Level during an applicable Subscription Term. Elastic may from time to time modify the Eligible Features and Functions of Elastic Swiftype App Search during the Subscription Term, but shall not materially reduce the functionality thereof.
    2. 3.2 Provision of Support Services. During the applicable Subscription Term, Elastic will provide Customer with Support Services in accordance with the Support Services Policy and the Elastic Subscription Level purchased by Customer. Support Services will only be delivered remotely, electronically, through the Internet, and when applicable, depending on the particular Subscription Level purchased, via telephone.
    3. 3.3 Third Party Contractors. At Customer's written request to Elastic's support organization (e-mail sufficient if receipt confirmed or acknowledged), Elastic will provide the Support Services to Customer's third party IT contractors ("Contractors"), solely in connection with such Contractors' provision of services to Customer, and provided that (i) such Contractors do not offer any software-as-a-service that competes with Elastic Swiftype App Search, (ii) Customer shall remain responsible to Elastic for the compliance of such Contractors with the terms and conditions of this Agreement, and (iii) such Contractors are contractually bound to obligations that reasonably protect Elastic's intellectual property and Confidential Information.
    4. 3.4 Restrictions. Support Services are provided to Customer solely for Customer's internal use (which includes use by Customer Affiliates, and, subject to Section 3.3, Contractors), and are subject to the quantitative limitations set forth on the applicable Order Form, and applicable limitations on the number of support contacts and incidents, if any, set forth in the Support Services Policy. Customer shall use Elastic Swiftype App Search in compliance with all applicable laws, including export control and data privacy laws.In addition, Customer agrees to not: (i) use Elastic Swiftype App Search to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs; (ii) use Elastic Swiftype App Search to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party; (iii) access or use Elastic Swiftype App Search to compete against Elastic; (iv) access or use Elastic Swiftype App Search for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; (v) except as expressly permitted herein, make access to Elastic Swiftype App Search through its account available to any third party; (vi) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, Elastic Swiftype App Search; (vii) interfere with or disrupt the integrity or performance of Elastic Swiftype App Search or third-party data contained therein; (viii) attempt to gain unauthorized access to Elastic Swiftype App Search or any associated systems or networks; (ix) modify, make derivative works of, disassemble, decompile or reverse engineer Elastic Swiftype App Search or any component thereof; or (x) use Elastic Swiftype App Search in furtherance of the violation of the rights of others.
    5. 3.5 Suspension. If Elastic believes, in its sole discretion, that Customer has violated or attempted to violate Section 3.4 of this Agreement, or that Customer's use of Elastic Swiftype App Search presents a material security risk, Elastic may suspend access to Elastic Swiftype App Search until the violation has been corrected. Elastic will use reasonable efforts to provide Customer with advance written notice prior to implementing such suspension and will work with Customer to resolve the underlying issue.
  4. 4 FEES AND PAYMENT; TAXES
    1. 4.1 Fees and Payment. Unless otherwise set forth on the Order Form, Customer agrees to pay Elastic the fees stated on an Order Form within thirty (30) days of receipt of an applicable invoice. Elastic will invoice Customer monthly in arrears, at its then-current rates, for any additional amounts owed on usage of Elastic Swiftype App Search in excess of the quantity of Resources included in the Subscription Level purchased by Customer. The invoice will be paid in the currency set forth on the Order Form. Except as otherwise expressly provided in this Agreement, any and all payments made by Customer pursuant to this Agreement or any Order Form are non-refundable, and all commitments to make any payments hereunder or under any Order Form are non-cancellable. Payments will be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Elastic may charge interest at one percent (1%) per month on the unpaid balance.
    2. 4.2 Taxes. All fees stated on an Order Form are exclusive of any applicable sales, use, value added and excise taxes levied upon the delivery or use of the taxable components, if any, of any Subscription purchased by Customer under this Agreement (collectively, "Taxes"). Taxes do not include any taxes on the net income of Elastic or any of its Affiliates. Customer will pay and be solely responsible for all Taxes. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of Elastic Swiftype App Search or the Support Services under this Agreement, Customer shall increase the sum paid to Elastic by an amount necessary for the total payment to Elastic equal to the amount originally invoiced.
    3. 4.3 Disputes. Customer may dispute amounts billed by providing notice within ten (10) days of being billed for such amounts, or Customer will be deemed to have waived its right to dispute such amounts.
    4. 4.4 Payment Information. Customer acknowledges and agrees that any credit card and related billing and payment information provided to Elastic may be shared by Elastic with companies who work on Elastic's behalf, such as payment processors and/or credit agencies, but solely for the purposes of checking credit, effecting payment to Elastic and servicing Customer's Account. Elastic shall not be liable for any use or disclosure of such information by such third parties.
  5. 5 CONFIDENTIAL INFORMATION
    1. 5.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature ("Confidential Information"). Confidential Information includes materials and all communications concerning Elastic's or Customer's business and marketing strategies, including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with Elastic Swiftype App Search, anything provided by either party to the other in connection with the Support Services provided under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party.
    2. 5.2 Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter keep in trust and confidence all Confidential Information of the other party using commercially reasonable care (but in no event less than the same degree of care that the receiving party uses to protect its own Confidential Information) and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than Affiliates without the other party's prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.
    3. 5.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party's breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party's possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
    4. 5.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential investors, potential acquirers, accountants, attorneys and parent organizations pursuant to the terms of a non-disclosure or confidentiality agreement.
    5. 5.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party's Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party's cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party's Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
  6. 6 PRIVACY STATEMENT AND CUSTOMER DATA
    1. 6.1 Definition of Data. In connection with Customer's use of Elastic Swiftype App Search, Customer and/or its end users may send information, content and data (collectively, "Data") to, or retrieve Data from, Elastic Swiftype App Search.
    2. 6.2 Customer Responsibility for Data. Customer is fully responsible for the content, accuracy and completeness of such Data, and any loss, liabilities or damages resulting from the Data, regardless of whether the Data consists of, including but not limited to, text, graphics, audio, video, or computer software. Customer represents and warrants to Elastic that: (i) Customer owns or has the necessary licenses to provide the Data to Elastic, and the provision of the Data to, and use of the Data by, Elastic as contemplated herein will not infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; and (ii) the Data does not contain any viruses, worms, malware, Trojan horses or other harmful or destructive code. Customer is solely responsible for backing up or otherwise making duplicates of Data.
    3. 6.3 Data Processing. To the extent Customer communicates any Data relating to an identified or identifiable individual ("Personal Data") to Elastic, or Elastic obtains any Personal Data from Customer, Elastic agrees that it (and/or its contractors) will not knowingly collect, access, use, store, disclose, transfer or otherwise process (collectively, "Process" or "Processing") any such Personal Data except (i) for the purposes of this Agreement, including without limitation, to implement and deliver Elastic Swiftype App Search and its features and associated services, provide customer support, and help Customer prevent or address service or technical problems; (ii) as expressly permitted by Customer in this Agreement or otherwise; or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data Processed is by Customer (including, without limitation, by disclosing the Personal Data to Elastic) in connection with Customer's use of or access to Elastic Swiftype App Search and its features and associated services. For purposes of this Agreement, Customer is a "data controller" and Elastic is a "data processor" with respect to Personal Data, as these terms are defined in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("GDPR" or "General Data Protection Regulation").
    4. 6.4 License to Elastic. By submitting Data to Elastic, Customer hereby grants Elastic a sublicensable, worldwide, royalty-free, and non-exclusive right to reproduce, modify, adapt and publish the Data solely for the purpose of enabling Elastic to provide Customer with Elastic Swiftype App Search. If Customer wishes to delete Data from Customer's Account, Elastic will use reasonable efforts to remove it, but Customer acknowledges that backups, caching or references to the Data may not be made immediately unavailable.
    5. 6.5 Data Retrieval. Customer is solely responsible for deleting or retrieving Data from Elastic Swiftype App Search prior to termination of Customer's Account for any reason. If Elastic terminates Customer's Account, Elastic will provide Customer a reasonable opportunity to retrieve Customer's Data from Elastic Swiftype App Search, if requested in writing. Such a request must be sent by email to Elastic within seven (7) days after Customer receives notice regarding the termination. In any event, Data will be deleted from Elastic Swiftype App Search no earlier than fourteen (14) days after the termination notice regarding Customer Account has been sent to Customer. Notwithstanding the foregoing, Elastic may delete Data or refuse to provide access there to, at any time, if doing so would present a material risk of Elastic or if doing is in accordance with Elastic's Digital Millennium Copyright Act policy.
  7. 7 LIMITED WARRANTY, WARRANTY DISCLAIMER
    1. 7.1 Warranty. Elastic warrants that during the Subscription Term it will perform applicable Support Services, if any, and provide Elastic Swiftype App Search in a professional, workmanlike manner, consistent with generally accepted industry practice, and, if applicable, in substantial accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Elastic's sole obligation, and Customer's exclusive remedy, shall be for Elastic to re-perform the applicable Support Services or correct any non-conformity in Elastic Swiftype App Search, as applicable.
    2. 7.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1, THE SUPPORT SERVICES AND ELASTIC SWIFTYPE APP SEARCH ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND ELASTIC MAKES NO OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SUPPORT SERVICES, ELASTIC SWIFTYPE APP SEARCH OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SUPPORT SERVICES AND ELASTIC SWIFTYPE APP SEARCH. ELASTIC DOES NOT GUARANTEE THE ACCURACY OR RELIABILITY OF ANY RESULTS GENERATED BY ELASTIC SWIFTYPE APP SEARCH AND CUSTOMER RELIES ON SUCH PRODUCT AT ITS OWN RISK.
  8. 8 INFRINGEMENT CLAIMS
    1. 8.1 Obligation. Elastic will, at its expense: (i) defend, or at its option settle, any claim brought against Customer by an unaffiliated third party alleging that Customer's use, during the applicable Subscription Term, of Elastic's technology used to provide Elastic Swiftype App Search (excluding any open source software) or the Support Services infringed such party's patent registered as of the Effective Date, or any copyright or trademark of such party, enforceable in the jurisdiction of Customer's use of Elastic Swiftype App Search or the Support Services, or made unlawful use of such party's trade secret (each, an "Infringement Claim") and (ii) indemnify Customer against and pay (1) any settlement of such Infringement Claim consented to by Elastic or (2) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim.
    2. 8.2 Exclusions. Elastic will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) Customer's use of Elastic Swiftype App Search or Support Services in a country that is not a contracting state to the Patent Cooperation Treaty; (ii) a modification of Elastic Swiftype App Search that is not performed by or on behalf of Elastic; (iii) the combination, operation, or use of Elastic Swiftype App Search with any other products, services or equipment not provided by Elastic or branded as Elastic products or services, where there would be no Infringement Claim but for such combination; (iv) use of Elastic Swiftype App Search other than in accordance with the terms and conditions of this Agreement; (v) damages attributable to the value of the use of any non-Elastic product or service or (vi) any third party open source software and/or third party computing infrastructure products or services.
    3. 8.3 Certain Remedies. If Elastic Swiftype App Search or the Support Services are, or in Elastic's reasonable opinion are likely to become, the subject of an Infringement Claim and/or an injunction as the result of an Infringement Claim, Elastic may, at its expense and option: (i) obtain the right for Customer to continue to use Elastic Swiftype App Search or the Support Services (as applicable); (ii) modify Elastic Swiftype App Search or the Support Services (as applicable) to make it/them non-infringing, but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are, in Elastic's reasonable judgement, commercially reasonable options, terminate Customer's right to use Elastic Swiftype App Search (as applicable) and/or Support Services, and, at Customer's written request, terminate all affected Order Forms and promptly refund to Customer any unused pre-paid fees paid by Customer to Elastic under such terminated Order Forms.
    4. 8.4 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ELASTIC, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, OR TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, OR MISAPROPRIATION OF ANY TRADE SECRET, BY ELASTIC SWIFTYPE APP SEARCH AND/OR THE SUPPORT SERVICES.
    5. 8.5 Obligations of Customer. Except with respect to a matter addressed under Section 8.1 above, Customer will, at its expense (i) defend, or at its option settle, but subject to Elastic's prior written consent, not to be unreasonably withheld, a claim brought against Elastic, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to Customer's use of Elastic Swiftype App Search, including but not limited to breach by Customer of Sections 3.4 or 6.3 of this Agreement, and (ii) indemnify Elastic against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.
    6. 8.6 Conditions. The obligations of an indemnifying party (the "Indemnifying Party") in this Section 8 are conditioned upon the party receiving such indemnity (the "Indemnified Party") (i) notifying the Indemnifying Party promptly of any threatened or pending claim, provided that failure to provide such notice will only relieve the Indemnifying Party of its obligations under this Section 8 to the extent its ability to defend or settle an applicable claim is prejudiced by such failure to provide notice, (ii) giving the Indemnifying Party, at the Indemnifying Party's expense, reasonable assistance and information requested by the Indemnifying Party in connection with the defense and/or settlement of the claim and (iii) tendering to the Indemnifying Party sole control over the defense and settlement of the claim. The Indemnified Party's counsel will have the right to participate in the defense of the claim, at the Indemnified Party's expense. The Indemnified Party will not, without the prior written consent of the Indemnifying Party, make any admission or prejudicial statement, or settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim.
  9. 9 LIMITATION OF LIABILITY
    1. 9.1 Excluded Damages. IN NO EVENT SHALL CUSTOMER OR ELASTIC BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. 9.2 Damages Cap. EXCEPT WITH RESPECT TO A BREACH BY ELASTIC OF ITS OBLIGATIONS UNDER SECTION 5, AND WITH RESPECT TO ELASTIC'S OBLIGATIONS UNDER SECTION 8.1(i), AND EXCEPT IN THE CASE OF WILLFUL MISCONDUCT (NO: FORSETT, SE: UPPSÅT) OR GROSS NEGLIGENCE (NO: GROV UAKTSOMHET, SE: GROV OAKTSAMHET), IN NO EVENT SHALL ELASTIC'S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO ELASTIC UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. DIRECT DAMAGE IS EXCLUSIVELY UNDERSTOOD AS REASONABLE EXPENSES WHICH THE CUSTOMER WOULD HAVE TO INCUR TO MAKE ELASTIC'S PERFORMANCE CONFORM TO THE AGREEMENT; REASONABLE EXPENSES INCURRED TO DETERMINE THE CAUSE AND SCOPE OF THE DAMAGE, INSOFAR AS THE DETERMINATION RELATES TO DIRECT DAMAGE AS HEREIN DEFINED AND REASONABLE EXPENSES INCURRED TO PREVENT OR MITIGATE DAMAGE, INSOFAR AS CUSTOMER DEMONSTRATES THAT THESE EXPENSES RESULTED IN MITIGATION OF DIRECT DAMAGE AS HEREIN DEFINED.
    3. 9.3 Basis of the Bargain. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 9 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF ELASTIC FOR THE SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
  10. 10 TERM AND TERMINATION
    1. 10.1 Subscription Term. Unless otherwise set forth on the Order Form, the initial term of Customer's Subscription under the Order Form will be one (1) year. Thereafter, the term of Customer's Subscription shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the Subscription at least thirty (30) days prior to the expiration of the then-current term. The initial Subscription term, plus any subsequent renewal Subscription term, shall be the Subscription Term. For the avoidance of doubt, the term of this Agreement shall be coterminous with the Subscription Term.
    2. 10.2 Termination. Each party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so.
    3. 10.3 Survival. Upon the expiration or termination of this Agreement, (i) Customer shall have no further rights to receive the Support Services or access Elastic Swiftype App Search; and (ii) any payment obligations accrued under Section 4, as well as the provisions of Sections 5, 6.5, 6.6, 7, 8, 9, 10.3 and 11 of this Agreement will survive such expiration or termination. Any outstanding balance becomes immediately due and payable upon termination of Customer's use of Elastic Swiftype App Search for any reason.
  11. 11 GENERAL
    1. 11.1 Anti-Corruption. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws ("Anti-Corruption Laws"). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this Agreement.
    2. 11.2 Assignment; Subcontracting. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially of a the assigning party's assets. Any assignment in violation of this Section 11.2 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns. Nothing will restrict Elastic from subcontracting its obligations under this Agreement to any third parties.
    3. 11.3 Attorney's Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement (excluding any mediation required under this Agreement), the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, "prevailing party" includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
    4. 11.4 Customer Identification. Customer consents to Elastic's identification of Customer as a user of Elastic Swiftype App Search and the Support Services, on its webApp, through a press release issued by Elastic and in other promotional materials.
    5. 11.5 Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party's reasonable control.
    6. 11.6 Future Features and Functions. Customer understands and agrees that any features or functions of services or products referenced on any Elastic webApp, or in any presentations, press releases or public statements, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Elastic's sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time an Order Form is executed, and not in expectation of any future feature or function.
    7. 11.7 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of Norway. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of Oslo District Court (Norwegian; Oslo tingrett). The Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods.
    8. 11.8 Non-Solicitation. During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit, nor approach in any way, any of Elastic's employees or contract staff with a view to (i) offering such persons, employment, (ii) soliciting services from them on their own account, (iii) encouraging them to provide their services to a third party rather than Elastic, or (iv) offering to them the opportunity to perform services similar to the Support Services. However, the foregoing restriction shall not apply to any employee or former employee that responds (without specific solicitation) to a general solicitation of general circulation, placement agencies, or similar means.
    9. 11.9 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or by e-mail, if acknowledged received by return e-mail or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified on an Order Form. Notices to Elastic may also be sent to legal@elastic.co. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section 11.9.
    10. 11.10 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party's right to assert or rely upon such provision, right or remedy in that or any other instance.
    11. 11.11 Order of Precedence. To the extent there is any conflict between or among the terms and conditions of this Agreement, and those set forth in any executed Order Form, the Support Services Policy or the Privacy Statement, the following order of precedence will apply: (i) the Privacy Statement, (ii) an applicable Order Form (but only for the transaction thereunder), (iii) this Agreement, and (iv) the Support Services Policy.
    12. 11.12 Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.
    13. 11.13 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
    14. 11.14 Suggestions, Ideas and Feedback. Subject to its obligations under Section 5 of this Agreement (Confidential Information), Elastic will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions, ideas and/or feedback (collectively, "Feedback") provided to Elastic by Customer, or its Affiliates and their respective employees, Contractors or other agents, with respect to Elastic Swiftype App Search and/or the Support Services. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
    15. 11.15 Entire Agreement; Amendment. This Agreement, together with an Order Form executed by the parties, the Privacy Statement and the Support Services Policy, constitute the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of Elastic Swiftype App Search and Support Services, Customer shall do so only for Customer's own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into the Agreement, whether prior to or following receipt of Customer's purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Elastic's performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. Except as expressly provided in this Agreement, this Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of Elastic and Customer by duly authorized representatives.

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