Elastic Cloud Premium Subscription Agreement

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This Elastic Cloud Premium Subscription Agreement, including all attachments, addenda, schedules and exhibits, and documents at referenced URLs (this "Agreement") is entered into by and between Elasticsearch B.C. Ltd., a Delaware corporation, with its principal place of business located at 800 W. El Camino Real, Suite 350, Mountain View CA 94040 ("Elastic"), and the entity identified as the "Customer" ("Customer") on the signature block of the Elastic order form executed by Elastic and Customer ("Order Form"), as of the date specified in such Order Form ("Effective Date").

  1. 1 DEFINITIONS
    1. 1.1 "Elastic Cloud" means the web-based service provided by Elastic, located at www.elastic.co/cloud.
    2. 1.2 "Elastic Cloud Premium" means the premium version of the Elastic Cloud service, which includes the right to receive Support Services and the right to use additional features and functions, not available on Elastic Cloud Standard.
    3. 1.3 "Elastic Cloud Standard" means the standard version of the Elastic Cloud service.
    4. 1.4 "Elastic Cloud Standard Terms" means the Elastic Cloud Standard Terms of Service, which can be viewed at www.elastic.co/legal/terms-of-service/cloud.
    5. 1.5 "Premium Support Services Policy" means Elastic's support services policy for Elastic Cloud Premium, set forth at www.elastic.co/legal/support_policy/cloud_premium, which provides the details of Elastic's Support Services obligations to, and benefits, for users of Elastic Cloud Premium. Elastic reserves the right to reasonably modify the Premium Support Services Policy during a Subscription Term. However, Elastic agrees not to materially diminish the level of Support Services during the Subscription Term. The effective date of each version of the Premium 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.
    6. 1.6 "Subscription" means the right, for a fixed period of time, of Customer to access and use Elastic Cloud Premium.
    7. 1.7 "Subscription Level" means the level of Elastic Cloud Premium Subscription purchased by Customer. The Subscription Level purchased by Customer determines the specific Support Services that Customer is entitled to receive, and the specific features and functions of Elastic Cloud Premium that Customer is entitled to use.
    8. 1.8 "Subscription Term" means the period of time for which a Subscription is valid, as further described in Section 9.1 of this Agreement.
    9. 1.9 "Support Services" means maintenance and support services for users of Elastic Cloud Premium, as more fully described in the Premium Support Services Policy.
  2. 2 SUBSCRIPTION
    1. 2.1 Initial Order. The Order Form sets forth the Subscription Level, Subscription Term, memory capacity and applicable fees. Each such executed Order Form is incorporated by reference into, and shall be governed by the terms and conditions of, this Agreement.
    2. 2.2 Additions to Subscriptions. Customer may add additional memory capacity to its Subscription by entering into one or more additional Order Forms setting forth the amount of memory to added to the existing Subscription, and referencing the Order Form under which the Subscription was initially purchased. Upon execution of such an Order Form by the parties, the additional memory will be deemed added to the Subscription for the remainder of the Subscription Term, or, if so indicated on the Order Form, a new Subscription Term may be initiated that includes the increased memory capacity, and provides Customer with a credit for the unused portion of the initial Subscription.
    3. 2.3 Incorporation of Terms. In addition to the terms and conditions set forth herein, Customer's use of Elastic Cloud Premium is also subject to the Elastic Cloud Standard Terms, the Order Form(s) entered into by the parties hereunder and the Premium Support Services Policy. The Elastic Cloud Standard Terms, the Premium Support Services Policy and the Order Form(s) are incorporated into this Agreement by this reference.
    4. 2.4 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 the executed Order Form, the Elastic Cloud Standard Terms or the Premium Support Services Policy, the following order of precedence will apply: (i) the Order Form(s), (ii) this Agreement, (iii) the Premium Support Services Policy and (iv) the Elastic Standard Terms.
  3. 3 SUPPORT SERVICES
    1. 3.1 Provision of Support Services. During the Subscription Term, Elastic will provide Customer with Support Services in accordance with the Premium Support Services Policy and the Subscription Level selected by Customer. For the avoidance of doubt, Customer must purchase the same Subscription Level for all activity under its Account. Support Services will only be delivered remotely, electronically, through the Internet, and when applicable, depending on the particular Support Services purchased, via telephone.
    2. 3.2 Restrictions. Support Services are provided to Customer solely for Customer's own internal use, and are subject to the quantitative limitations set forth on the applicable Order Form and in the Premium Support Services Policy, and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Customer agrees that if Customer breaches any of the foregoing limitations, Elastic may suspend the provision of Support Services to Customer if Customer fails to cure such breach within ten (10) business days of receipt of written notice thereof. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to the Support Services or any related Elastic materials, other than the rights of use specifically granted in these Elastic Cloud Premium Terms.
  4. 4 INFRINGEMENT CLAIMS
    1. 4.1 Obligation. Elastic will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that Customer's use of Elastic Cloud Premium or the Support Services during the Subscription Term infringed such party's patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer's use of Elastic Cloud Premium or Support Services, or made intentional, 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 to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
    2. 4.2 Certain Remedies. If an Infringement Claim occurs, or in Elastic's opinion is reasonably likely to occur, Elastic, at its expense and in its sole discretion, may, in addition to its obligations under Section 4.1, either: (i) procure the right to allow Customer to continue to use Elastic Cloud Premium; or (ii) modify or replace Elastic Cloud Premium or infringing portions thereof to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer's Subscription to Elastic Cloud Premium and refund to Customer any pre-paid, unused fees paid by Customer to Elastic for such Subscription.
    3. 4.3 Exclusions. Elastic will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) a modification of Elastic Cloud Premium that is not performed by or on behalf of Elastic; (ii) the combination, operation, or use of Elastic Cloud Premium with any other products, services or equipment not provided by Elastic, where there would be no Infringement Claim but for such combination; or (iii) damages attributable to the value of the use of a non-Elastic product or service. Customer will reimburse Elastic for any expenses, costs and/or damages that result from any of the actions or situations described in (i) – (iii) above.
    4. 4.4 Conditions. The obligations of Elastic in this Section 4 are conditioned upon Customer (i) notifying Elastic promptly of any threatened or pending Infringement Claim, provided that failure to provide such notice will only relieve Elastic of its obligations under this Section 4 to the extent its ability to defend or settle an applicable Infringement Claim is prejudiced by such failure to provide notice, (ii) giving Elastic, at Elastic's expense, reasonable assistance and information requested by Elastic in connection with the defense and/or settlement of the Infringement Claim and (iii) tendering to Elastic sole control over the defense and settlement of the Infringement Claim. Customer's counsel will have the right to participate in the defense of the Infringement Claim, at Customer's expense. Customer will not, without the prior written consent of Elastic, make any admission or prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
    5. 4.5 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 4 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ELASTIC, AND CUSTOMER'S EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY ELASTIC CLOUD PREMIUM AND/OR THE SUPPORT SERVICES.
  5. 5 FEES AND PAYMENT; TAXES
    1. 5.1 Fees and Payment. Customer agrees to pay Elastic the fees stated on the Order Form within thirty (30) days of receipt of an applicable invoice. Elastic will invoice Customer for any additional amounts owed based on usage in excess of the purchased memory capacity, at its then-current rates, monthly in arrears. Elastic reserves the right to change fees upon thirty days' notice. All invoices will be paid in the currency set forth on the applicable Order Form. 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. 5.2 Taxes. Customer will pay Elastic all sales, use, and excise taxes levied upon the delivery or use of the taxable Support Services described in this Agreement, unless Customer provides Elastic a valid state sales/use/excise tax exemption certificate or Direct Pay Permit. Customer will pay all import or export, value added or other tax or duty, and all government permit, withholding or license fees, and customs or similar fees, levied upon the delivery or use of Elastic Cloud Premium.
  6. 6 CONFIDENTIAL INFORMATION
    1. 6.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, including Elastic Cloud Premium) 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 lists and 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 Cloud Premium, anything provided by either party to the other in connection with the Support Services provided under these Elastic Cloud Premium Terms, 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. 6.2 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 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. "Affiliate" means an entity that a party controls, an entity that controls a party or an entity that is under common control with a party, where control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
    3. 6.3 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; (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 use of the Confidential Information.
    4. 6.4 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party's Confidential Information in compliance with that order only if such party: (i) unless prohibited by law, gives the other party prior 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 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, 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 reasonably necessary to comply with an applicable order.
  7. 7 LIMITED WARRANTY, WARRANTY DISCLAIMER
    1. 7.1 Warranty. Elastic warrants that during each Subscription Term it will perform the Support Services and provide Elastic Cloud Premium in a professional, workmanlike manner, consistent with generally accepted industry practice, and 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 Cloud Premium, as applicable.
    2. 7.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1, THE SUPPORT SERVICES AND ELASTIC CLOUD PREMIUM 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 CLOUD PREMIUM 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 CLOUD PREMIUM.
  8. 8 LIMITATION OF LIABILITY
    1. 8.1 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. 8.2 Damages Cap. EXCEPT WITH RESPECT TO A BREACH OF ITS OBLIGATIONS UNDER SECTION 6, AND WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 4.1(i), IN NO EVENT SHALL ELASTIC'S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO ELASTIC UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    3. 8.3 Basis of the Bargain. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 8 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.
  9. 9 TERM AND TERMINATION
    1. 9.1 Subscription Term. Unless otherwise set forth in the Order Form, the initial term of Customer's Subscription 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 of, shall be the "Subscription Term".
    2. 9.2 Termination. Each party may terminate the Agreement upon giving notice in writing to the other party if the non-terminating party commits a breach of the 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. 9.3 Survival. Upon the expiration or termination of the Agreement, (i) Customer shall have no further rights to receive the Support Services; and (ii) any payment obligations accrued under Section 5, as well as the provisions of Sections 4, 6, 7, 8, 9.3 and 10 of this Agreement will survive such expiration or termination.
  10. 10 GENERAL
    1. 10.1 Assignment. 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 10.1 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.
    2. 10.2 Identification. Customer consents to Elastic's identification of Customer as a user of Elastic Cloud Premium and the Support Services, on its website, through a press release issued by Elastic and in other promotional materials.
    3. 10.3 Fees. In any judicial proceeding between Customer and Elastic arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys' fees.
    4. 10.4 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.
    5. 10.5 Governing Law, Jurisdiction and Venue.
      1. (a) Customers in California. If Customer is located in California (as determined by the customer address on the applicable Order Form), the Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
      2. (b) Customers Outside of California. If Customer is located anywhere other than California (as determined by the customer address on the applicable Order Form), this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
      3. (c) All Customers. The Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
      4. (d) Equitable Relief. A breach or threatened breach, by either party of Section 6 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.
    6. 10.6 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 colourably 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.
    7. 10.7 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 below the signatures on this Agreement. E-mail notices sent to Elastic should be sent to legal@elastic.co. Either party may from time to time change its addresses for notices under this Section by giving the other party notice of the change in accordance with this Section 10.7.
    8. 10.8 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.
    9. 10.9 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.
    10. 10.10 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.
    11. 10.11 Entire Agreement; Amendment. This Agreement, together with the Elastic Cloud Standard Terms, the Order Form executed by the parties and the Premium 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 the 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. 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.

v 1.0, August 25, 2016