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THESE ELASTIC CLOUD STANDARD TERMS OF SERVICE-ORDER FORM SUBSCRIPTION PURCHASE (THE “TERMS”) ARE PART OF A LEGAL CONTRACT BETWEEN ELASTIC AS (“ELASTIC”, “WE” OR “US”) AND PERSONS OR ENTITES (“YOU”) REGISTERING FOR AN ACCOUNT (“ACCOUNT”) TO PURCHASE A SUBSCRIPTION (“SUBSCRIPTION”) TO USE THE WEB-BASED SERVICE PROVIDED BY ELASTIC (“ELASTIC CLOUD”) THROUGH AN ORDER FORM (“Order Form”), AS WELL AS ANY RELATED USE OF THE WEBSITE WWW.ELASTIC.CO/CLOUD (“SITE”).
THE TERMS, TOGETHER WITH ANY ADDITIONAL TERMS AND CONDITIONS AND/OR POLICIES REFERENCED AND INCORPORATED HEREIN, OR WHICH INCORPORATE THESE TERMS AND CONDITIONS, PROVIDE ALL OF THE TERMS AND CONDITIONS INCLUDED IN A LEGALLY BINDING CONTRACT BETWEEN YOU AND ELASTIC (THE “AGREEMENT”). THE AGREEMENT GOVERNS YOUR USE OF THE SITE, AND, IF YOU REGISTER FOR AN ACCOUNT, YOUR USE OF ELASTIC CLOUD THROUGH YOUR ACCOUNT WITH THE SITE. IF YOU REGISTER FOR AN ACCOUNT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO ELASTIC THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS IN THE AGREEMENT, YOU MAY NOT USE THE SITE, REGISTER FOR AN ACCOUNT OR USE ELASTIC CLOUD. BY SIGING AN ORDER FORM AND REGISTRERING FOR AN ACCOUNT, YOU IRREVOCABLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT APPLICABLE TO SUCH ACTIVITY.
Effective Date: August 10, 2016
1. Your Account
(a) In order to use Elastic Cloud, you must first register for an account on the Site. If you sign up for, or purchase a subscription to, Elastic Cloud through a third party, you will create the Account either (i) through the third party's site or (ii) by being redirected to the Site to create an Account.
(b) By creating the Account, you are responsible for maintaining the security of your Account (including, but not limited to, login credentials, security-keys and the correct configuration of access control lists), and you are fully responsible for all activities that occur under your Account, and any other actions taken in connection with your Account. You agree to immediately notify Elastic of any unauthorized use of your Account, or any other breaches of security of which you become aware. Elastic will have no liability for any acts or omissions on your part, including any damages of any kind incurred as a result of such acts or omissions.
(c) Your Account will be your main point of contact for Elastic Cloud. Any notifications regarding Elastic Cloud will be sent to the email address registered with your Account.
2. Elastic Cloud Standard and Elastic Cloud Premium
(a) You may elect to use one of two versions of Elastic Cloud, “Elastic Cloud Standard” or “Elastic Cloud Premium”.
(b) If you elect to use Elastic Cloud Standard, then these Terms and the applicable Order Form, together with the Elastic Privacy Statement located at https://www.elastic.co/legal/privacy-statement (“Privacy Statement”), which is hereby incorporated herein by this reference, contain the terms of the Agreement applicable to your use of Elastic Cloud.
(c) If you elect to use Elastic Cloud Premium, these Terms, as well as the terms and conditions of an applicable Elastic Cloud Premium Subscription Agreement (“Elastic Premium Agreement”), and the Elastic Cloud Premium Support Services Policy located at https://www.elastic.co/legal/support_policy/cloud_premium (“Premium Support Policy”), and the Elastic Privacy Statement, contain the terms of the Agreement applicable to your use of Elastic Cloud. For the avoidance of doubt, if you purchase a Subscription to Elastic Cloud Premium, in the event of any conflict or inconsistency between provisions in these Terms and those in the Elastic Cloud Premium Agreement, the provisions in the Elastic Cloud Premium Agreement will prevail.
3. Your Data
(a) In connection with your use of Elastic Cloud, you or some or all of your end users may send information, content and data (collectively, “Data”) to, or retrieve Data from, Elastic Cloud. You are entirely 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.
(b) By making Data available to Elastic Cloud, you represent and warrant that: (i) you own or have the necessary licenses to provide the Data to Elastic Cloud, and the provision of the Data to, and use of the Data by, Elastic Cloud as contemplated herein will not, to your knowledge, infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; (ii) the Data does not contain any viruses, worms, malware, Trojan horses or other harmful or destructive code; (iii) the Data is not spam, is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing); and (iv) you have, in the case of Data that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the Data, whether requested to do so by Elastic or otherwise.
(c) To the extent you communicate any Data relating to an identified or identifiable individual (“Personal Data”) to Elastic, or Elastic obtains any Personal Data from you, Elastic agrees that it (and/or its contractors) will not 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 Cloud and its features and associated services, provide customer support, and help you prevent or address service or technical problems; (ii) as expressly permitted by you in this Agreement or otherwise; or (iii) as compelled by law. You 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 your employees, contractors or other agents Process (including, without limitation, by disclosing the Personal Data to Elastic) in connection with your use of or access to Elastic Cloud and its features and associated services. For purposes of this Agreement, you act as a “data controller” and Elastic acts as a “data processor” with respect to Personal Data, as these terms are defined in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and any replacement directive or regulation imposing equivalent obligations.
(d) By submitting Data to Elastic, you hereby grant Elastic a worldwide, royalty-free, and non-exclusive right to reproduce, modify, adapt and publish the Data solely for the purpose of enabling Elastic to provide you with Elastic Cloud. If you wish to delete Data from your Account, Elastic will use reasonable efforts to remove it, but you acknowledge that backups, caching or references to the Data may not be made immediately unavailable.
(e) Without limiting any of the foregoing, Elastic has the right, though not the obligation, in Elastic’s sole discretion, either to (i) refuse or remove any Data for any reason; or (ii) terminate or deny access to and use of Elastic Cloud for any individual or entity for any reason. Elastic shall have no obligation to provide a refund of any amounts previously paid by any such individual, or entity having been denied access.
4. Payment and Taxes
(a) You agree to pay Elastic the fees stated on an Order Form within thirty (30) days of receipt of an applicable invoice. Elastic will invoice You 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 You do not pay the invoices when due, Elastic may charge interest at one percent (1%) per month on the unpaid balance.
(b) You 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 You provide Elastic a valid state sales/use/excise tax exemption certificate or direct pay permit. You 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.
(c) Any outstanding balance becomes immediately due and payable upon termination of your use of Elastic Cloud for any reason.
(d) You are responsible for paying all reasonable expenses and attorneys’ fees that Elastic incurs in connection with collecting unpaid amounts that are past due. Elastic reserves the right to terminate your right to access and use Elastic Cloud for failure to timely pay amounts due. In order to dispute any amount billed to you for your use of Elastic Cloud, you must do so within ten (10) days of being billed for such amounts, or you will be deemed to have waived your right to dispute such amounts.
(e) Elastic may change its fees and payment policies at any time, provided that such changes will apply upon the start of the next billing cycle. Changes to the fees or payment policies will be posted on the Site and/or through any of our established communication channels.
(f) You may not register multiple Accounts to simulate or act as a single Account or otherwise access Elastic Cloud in a manner intended to avoid incurring fees.
(a) You shall not: (i) use Elastic Cloud 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 Cloud 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 Cloud if you are a direct competitor of Elastic; (iv) access or use Elastic Cloud 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) make access to Elastic Cloud through your account available to any third party; (vi) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, Elastic Cloud; (vii) interfere with or disrupt the integrity or performance of Elastic Cloud or third-party data contained therein; (viii) attempt to gain unauthorized access to Elastic Cloud or any associated systems or networks; or (ix) modify, make derivative works of, disassemble, decompile or reverse engineer Elastic Cloud or any component thereof.
(b) If Elastic believes, in its sole discretion, that you have violated or attempted to violate any of the forgoing restrictions, Elastic may suspend or terminate your access to Elastic Cloud.
(c) If your use of Elastic Cloud with or without your knowledge exceeds the average usage in such a manner that it causes problems for other customers, as determined solely by Elastic, we reserve the right to throttle or pause your use of Elastic Cloud, with or without prior notice. Please contact us if you need to assess performance by benchmarking for more than five minutes.
6. Copyright Infringement
(a) Elastic respects the intellectual property rights of others, and we ask you to do the same. Elastic may, in appropriate circumstances and at our discretion, terminate your access to Elastic Cloud and/or access to the Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site or is stored in Elastic Cloud, please provide Elastic’s designated agent the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site or Elastic Cloud, and information reasonably sufficient to permit Elastic to locate the material.
(iv) Information reasonably sufficient to permit Elastic to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Elastic’s agent for notice of claims of copyright or trademark infringement on this Site or Elastic Cloud can be reached as follows:
800 W. El Camino Real, Suite 350
Mountain View, CA 94040
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
(b) Elastic will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Elastic designated agent that includes all of the following information:
(i) Your physical or electronic signature;
(ii) Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
(iv) Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Elastic may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
(c) Elastic reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
7. Intellectual Property
(a) This Agreement does not transfer from Elastic to you any intellectual property rights, and all right, title and interest in and to Elastic Cloud will remain (as between the parties) solely with Elastic or its third party suppliers. Elastic, the Elastic and Elastic Cloud logos, and all other trademarks, service marks, graphics and logos used in connection with Elastic Cloud and the Site 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 Site may be the trademarks of other third parties. Elastic grants to you no right or license to reproduce, or otherwise use any Elastic or third-party trademarks in connection with your use of Elastic Cloud.
(b) Elastic will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions or feedback (collectively, “Feedback”) provided to Elastic by Customer, or its Affiliates and their respective employees, Contractors or other agents, with respect to Elastic Cloud, the Support Services, the Community Software and/or the Commercial Software. 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.
(a) You may terminate this Agreement at any time by cancelling your Account with Elastic Cloud. Termination of this Agreement shall neither release you from any obligations undertaken under the clauses of this Agreement, nor from any obligations to pay us for any outstanding fees. Any outstanding fees will be billed to you or withdrawn from your registered credit card. You will not receive any refunds by cancelling your Account.
(b) Elastic may terminate your access to all or any part of Elastic Cloud at any time, with or without cause, with or without notice, effective immediately. You agree that Elastic will not be liable to you or any third party for any such termination.
(c) You are solely responsible for deleting or retrieving your Data from Elastic Cloud prior to termination of your Account for any reason. If we terminate your Account, we will provide you with a reasonable opportunity to retrieve your Data from Elastic Cloud, if you so request. Such a request must be sent by email to Elastic within seven (7) days after you receive notice regarding the termination. In any event, Data will be deleted from Elastic Cloud no earlier than fourteen (14) days after the termination notice regarding your Account has been sent to you.
(a) Elastic Cloud and the Site are provided "as is" without warranty of any kind. Elastic and its suppliers and licensors hereby disclaim any all warranties, express, implied or statutory, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Elastic nor its suppliers and licensors makes any warranty that the Site and/or Elastic Cloud will be error free, timely, meet your specific requirements or that access thereto will be continuous or uninterrupted.
(b) You understand and agree that your use of the Site and Elastic Cloud is entirely at your own risk. In the event of failure, we do not refund or credit any fees for any reason.
(c) Furthermore, while Elastic reserves the right, it has no obligation to monitor all of the content, data or information posted on the Site and/or uploaded to Elastic Cloud by third parties, and therefore is not responsible for any such content, data or information. Elastic does not represent or imply that it endorses any such content, data or information, or that we believe such content, data or information to be accurate, useful or non-harmful. You are responsible for taking precautions necessary to protect yourself, and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive materials. Elastic disclaims any responsibility for any harm resulting from the use by you of the Site or Elastic Cloud, or from any downloading by you of material posted there.
10. Limitation of liability
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, In no event will Elastic, or its suppliers or licensors, HAVE any liability FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT OR INDIRECT, in connection with the SITE OR THE provision of Elastic Cloud, or YOUR use of EITHER OF THEM, whether based on, negligence, torts, strict liability or other legal or equitable theory.
You agree to defend, indemnify and hold harmless Elastic, its contractors, suppliers and licensors, and their respective directors, officers, employees and agents from and against any and all claims, suits actions, liabilities, costs, damages and expenses, including reasonable attorneys’ fees, arising out of or related to your use of the Site and/or Elastic Cloud, including but not limited to your violation of this Agreement.
12. Assignments and Transfers
You may not assign this Agreement, in whole or in part, without the prior written consent of Elastic. Any assignment in violation of this Section 12 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.
13. Governing Law and Jurisdiction
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). This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods.
This Agreement constitutes the entire agreement between Elastic and you concerning the subject matter hereof, and supersedes any and all prior oral or written agreements, understandings and quotations relating hereto. If any provisions of this Agreement are held to be illegal, invalid or unenforceable, this shall not affect the legality and validity of the other provisions, which means that such provisions shall, if required, be modified or reformed to the fullest extent possible under applicable law so as to reflect the original intent of Elastic. The provisions of Sections 2, 3(a), 3(d), 4(c), 5(a), 7, 8(c), 9, 10, 11, 13 and 14 of these Terms will survive the termination or expiration of the Agreement.