Elastic Subscription Agreement
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This Elastic Subscription Agreement, including all attachments, addenda, schedules and exhibits, and documents at referenced URLs (this "Agreement") is entered into by and between Elasticsearch Federal, Inc., 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"), provided that, solely in the case of a U.S. Government Customer, this Agreement is entered into as of the date of the Government executes the Government Contract or Order under which the U.S. Government Customer obtains the Commercial Software that is the subject of this Agreement; and, solely in the case of U.S. Government Customers, in lieu of executing this Agreement and/or Exhibit A hereto, this Agreement shall be made an addendum to the Government Contract or Order..
Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
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.
1.2 "Billable Nodes" means, with respect to a Subscription, a number that is the greater of (i) the number of Nodes running across all Projects covered by the Subscription or (ii) the total GB of RAM addressable by all Nodes across all Projects covered by the Subscription divided by 128, with any fractional remainder being rounded up to the next whole number.
1.3 "Commercial Software" means Elastic-branded software that is licensed under the Elastic Commercial Software End User License Agreement set forth at https://www.elastic.co/eula/ ("EULA"), including all updates thereto and new releases thereof, that are made generally available by Elastic to its customers during an applicable Subscription Term.
1.4 "Community Software" means Elastic-branded software that is separately licensed and distributed under the Apache 2.0 license, including all updates thereto and new releases thereof.
1.5 "ECE" means the Elastic Commercial Software known as "Elastic Cloud Enterprise," use rights to which are subject to the terms of the EULA and included only in an Enterprise Subscription.
1.6 "ECE Instance" has the meaning set forth in the EULA.
1.7 "License Key" means an alphanumeric code that enables
use of software.
1.8 "Node" means an instance of the Community Software product known as "Elasticsearch," running on a server, which is not configured as a dedicated client node, dedicated coordinating node, or dedicated ingest node, as described in the Elasticsearch documentation.
1.9 "Non-production Environment" means an environment such as development, staging, or quality assurance, where software is not used for production purposes.
1.10 "Order Form" means an ordering document pursuant to which Customer purchases Subscriptions under this Agreement.
1.11 "Project" means a specific Customer use case for the Community Software, with Nodes being deployed for use in a logical grouping of functionality to support such use case.
1.12 "Reseller" means a third party authorized by Elastic to promote and resell Subscriptions.
1.13 "Software" means the Commercial Software and the Community Software.
1.14 "Subscription" means Customer's right, for a fixed period of time, to receive Support Services and use the applicable Commercial Software.
1.15 "Subscription Level" means the level of Subscription purchased by Customer, identified as a Gold, Platinum or Enterprise Subscription. The Subscription Level purchased by Customer determines the specific Support Services that Customer is entitled to receive, and the specific Commercial Software and features and functions that Customer is entitled to use.
1.16 "Subscription Term" means the period of time for which a Subscription is valid, as further described in Section 11.1 of this Agreement.
1.17 "Support Services" means maintenance and support services for applicable Software, as more fully described in the Support Services Policy.
1.18 "Support Services Policy" means Elastic's support services policy set forth at https://www.elastic.co/support_policy/english, which provides the details of Elastic's Support Services obligations. Elastic reserves the right to reasonably modify the Support Services Policy during a Subscription Term. However, Elastic agrees not to diminish the level of Support Services in any material respect 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.
1.19 "X-Pack" means the Elastic Commercial Software known as "X-Pack," limited use rights to which are and included in a Gold Subscription, and full use rights to which are included in Platinum and Enterprise Subscriptions, as further set forth in the terms of the EULA.
2.1 Subscription Pricing. Subscriptions are priced based on the Subscription Level and (i) in the case of Gold and Platinum Subscriptions, the number of Billable Nodes included in a Subscription and (ii) in the case of Enterprise Subscriptions, the number of ECE Instances included in a Subscription.
2.2 Subscription Orders.
(a) Initial Orders. Orders for Subscriptions may be placed by Customer through the execution of Order Forms with Elastic, setting forth the (i) Subscription Level, (ii) specific Project(s) to which such Subscription applies, (iii) number of Billable Nodes and/or ECE Instances for which Customer has purchased the Subscription, (iv) Subscription Term, and (v) total price for such Subscription. For non- U.S. Government Customers, each executed Order Form is incorporated by reference into, and shall be governed by the terms and conditions of, this Agreement. For U.S. Government Customers, this Agreement shall be made an addendum to the Government Contract or Order as provided in FAR 12.212(b).
(b) Additions and Upgrades to Subscriptions. Customer may add Billable Nodes and/or ECE Instances to an existing Subscription, and/or upgrade the Subscription Level of an existing Subscription, by entering into one or more additional Order Forms setting forth the number of Billable Nodes and/or ECE Instances to be added, and/or the new Subscription Level that applies, to the existing Subscription. Upon execution of such an Order Form by the parties, the additional Billable Nodes and/or ECE Instances, and/or the new Subscription Level, will be deemed added to the applicable Subscription for the remainder of the applicable Subscription Term, or, if so indicated on the Order Form, a new Subscription and Subscription Term may be initiated, that includes the increased number of Billable Nodes and/or ECE Instances, and/or the new Subscription Level, and provides Customer with a credit for the unused portion of the existing Subscription.
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 the Commercial Software and 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, Sections 6.1 and 6.2 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.
3.1 Community Software. Community software is licensed and distributed under the Apache 2.0 license, a copy of which may be found at https://www.apache.org/licenses/LICENSE-2.0.txt. While this Agreement limits Elastic's obligation to provide Support Services to the number of Billable Nodes and/or ECE Instances for which Customer has purchased a Subscription, Customer retains all of the rights granted under the Apache 2.0 license with respect to the Community Software.
3.2 Commercial Software. By purchasing a Subscription, Customer is permitted to install and use the applicable Commercial Software during the applicable Subscription Term and subject to the terms and conditions of the EULA. Elastic will provide to Customer a License Key promptly, which will enable Customer to use the applicable Commercial Software in accordance with the applicable EULA.
4 SUPPORT SERVICES
4.1 Provision of Support Services. During an applicable Subscription Term, Elastic will provide Customer with Support Services in accordance with the Support Services Policy:
(a) in the case of Gold and Platinum Subscription Levels, for the covered Project(s), up to the applicable number of Billable Nodes included in the Subscription; and
(b) in the case of an Enterprise Subscription Level, for the number of ECE Instances included in the Subscription.
Support Services will be delivered to Customer remotely, electronically, through the Internet, and when applicable, depending on the Subscription Level purchased, via telephone. For the avoidance of doubt, Support Services are not delivered in person at Customer's facilities.
4.2 Third Party Contractors. At Customer's written request to the Elastic support desk (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 Elastic software as part of any software-as-a-service, (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 Restrictions. Support Services are provided to Customer solely for Customer's internal use (which includes use by Customer Affiliates, and, subject to Section 4.2, Contractors), and are subject to applicable quantitative limitations on (i) the number of Billable Nodes and/or ECE Instances set forth on the applicable Order Form(s), (ii) the number of support contacts and (iii) incidents, if any, in the Support Services Policy. For the avoidance of doubt (1) where Customer has purchased a Subscription with a Subscription Level of Gold or Platinum, Nodes deployed in a Non-production Environment are not counted as Billable Nodes and (2) the foregoing internal use restriction is not intended to prohibit Customer from using the Support Services for a Project in which Software is used in connection with or as part of a Customer website or Customer's own software-as-a-service ("SaaS") offering, provided that any such SaaS offering includes substantial, additional value-added software applicat ion features and functions, in addition to the features and functions of the Software. In addition, Customer agrees to not:
(a) use the Support Services to supply any consulting, support or training services regarding the Software to any third party other than Customer Affiliates;
(b) use the Support Services to obtain support for Customer's use of any Community Software that is being hosted by a third party providing such Community Software as a service (provided, that this prohibition shall not prohibit Customer from running the Software on physical or virtual systems hosted by a third party, where the third party provides compute, storage or other infrastructure services to Customer, but does not provide the Community Software or its features and functions to Customer as part of such services); or
(c) use Support Services to obtain support (i) for its use of Community Software in a Project for which no Subscription has been purchased or (ii) under a higher Subscription Level for its use of Software in a Project for which Customer has purchased a lower Subscription Level.
Customer agrees that any knowing failure to comply with the terms of this Section 4.3 will be deemed a material breach of this Agreement. In the event of any failure to comply this Section 4.3, Elastic may, without prejudice to any other remedies available hereunder, at law or in equity, suspend (solely in the case of non-U.S. Government Customers) the provision of Support Services to Customer if Customer fails to cure such breach within fifteen (15) days after receipt of written notice thereof.
4.4 Reservation of Rights. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to the Support Services, the Commercial Software or any Elastic materials or trademarks, other than the rights of use specifically granted in this Agreement and the EULA.
5 INFRINGEMENT CLAIMS
5.1 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 Commercial Software or the Support Services infringed such party's patent registered as of the Effective Date in the United States, or any copyright or trademark of such party enforceable in the jurisdiction of Customer's use of the Commercial Software or 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.
5.2 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 Commercial Software or Support Services in a country that is not a contracting state to the Patent Cooperation Treaty; (ii) the failure of Customer to use, within thirty (30) days of Customer's receipt of notice from Elastic regarding the availability of such update and that such update addresses an infringement issue, an update of the Commercial Software that would have avoided the Infringement Claim; (iii) a modification of the Commercial Software that is not performed by or on behalf of Elastic; (iv) the combination, operation, or use of the Commercial Software 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; (v) use of the applicable Commercial Software other than in accordance with the terms and conditions of this Agreement; (vi) damages attributable to the value of the use of any non-Elastic product or service or (vii) any third party open source software.
5.3 Certain Remedies. If the Commercial Software 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 the applicable Commercial Software or Support Services; (ii) modify the applicable Commercial Software or Support Services 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 the applicable Commercial Software 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.
5.4 Conditions. The obligations of Elastic in this Section 5 are conditioned upon Customer (i) notifying Elastic promptly in writing of any threatened or pending Infringement Claim, provided that failure to provide such notice will only relieve Elastic of its obligations under this Section 5 to the extent its ability to defend or settle an applicable Infringement Claim is materially 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) solely in the case of non-U.S. Government Customers, 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 own expense. In the case of U.S. Government Customers, Customer shall be represented as provided under 28 U.S.C. § 516. 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.
5.5 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 5 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 ANY SOFTWARE AND/OR THE SUPPORT SERVICES.
6 PAYMENT AND TAXES
6.1 Payment. Customer agrees to pay Elastic the fees stated on each Order Form within thirty (30) days after receipt of an applicable invoice, except that U.S. Government Customers agree to pay in accordance with the Government's contract or order. 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. 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.
6.2 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 the 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. Unless Customer provides Elastic a valid state sales/use/excise tax exemption certificate or Direct Pay Permit, and provided that Elastic separately states any such taxes in the applicable invoice, 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 Support Services or the Commercial Software 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. Notwithstanding the forgoing, and with respect to U.S. Government Customers only, Taxes are subject to FAR 52.212-4(k), which provides that the contract price includes all federal, state, local taxes and duties.
6.3 Reporting use of Excess Billable Nodes. Customer agrees to promptly notify Elastic in writing if it uses a Gold or Platinum level Subscription in connection with more Billable Nodes than the number of Billable Nodes for which Customer has purchased such Subscription ("Excess Billable Nodes"). Customer shall include in such notice the number of Excess Billable Nodes and the date on which it first used any such Excess Billable Nodes. Elastic will invoice Customer, or, if applicable, a Reseller, for such Excess Billable Nodes, adjusted on a pro rata basis from the date of first use and for the remainder of the applicable Subscription Term.
7 CONFIDENTIAL INFORMATION
7.1 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 the Software, 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
8 WARRANTIES AND DISCLAIMER OF WARRANTIES
8.1 Support Services Warranty. Elastic warrants that during the Subscription Term it will perform the Support Services with respect to the applicable Project, in a professional, workmanlike manner, consistent with generally accepted industry practice. 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.
8.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 8.1, THE SUPPORT SERVICES 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 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. CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED IN CONNECTION ITS USE OF THE SUPPORT SERVICES. IN ADDITION, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, WEAPONS SYSTEMS, OR LIFE SUPPORT SYSTEMS.
9 DATA PRIVACY
Elastic does not seek or require, and Customer shall use commercially reasonable efforts not to provide Elastic with, access to (or the means to access) Customer Personal Data (other than Personal Data relating to Customer personnel that is obtained by Elastic in the ordinary course of maintaining its business relationship with Customer). If Elastic is nonetheless granted access to, or acquires the means to access, Customer Personal Data, then (i) Elastic shall promptly notify Customer that this is the case; and (ii) Elastic shall promptly and securely return all such Customer Personal Data as are in its possession or under its control to Customer, and Customer and Elastic shall cooperate to terminate such access. Where Elastic knows or reasonably suspects that an Information security breach (defined as any known or reasonably suspected loss, or unauthorized acquisition, disclosure, use or other form of compromise to Customer Personal Data) has affected Customer Personal Data, Elastic shall promptly notify Customer and reasonably cooperate with Customer, at Customer's expense, in any post-breach investigation or remediation efforts. "Personal Data" means any information relating to an identified or identifiable natural person (or, to the extent that applicable Data Privacy Laws apply to information about legal persons, an identified or identifiable legal person); "Customer Personal Data" means Personal Data owned, licensed, or otherwise controlled by Customer (including data maintained by Customer or Customer' Affiliate(s) on behalf of a third party), but does not include Personal Data relating to Customer personnel that is obtained by Elastic in the ordinary course of maintaining its business relationship with Customer; and "Data Privacy Law" means a data protection, privacy or confidentiality law or regulation in any relevant jurisdiction, including, without limitation, the Payment Card Industry Data Security Standard, the Health Information Portability and Accountability Act, the European Union Data Protection Directive, and the Federal Information Security Modernization Act.
10 LIMITATION OF LIABILITY
10.1 Excluded Damages. IN NO EVENT SHALL CUSTOMER OR ELASTIC, OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, 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.
10.2 Damages Cap. EXCEPT WITH RESPECT TO A BREACH OF ITS OBLIGATIONS UNDER SECTION 7, AND WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 5.1(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 FIRST EVENT GIVING RISE TO LIABILITY .
10.3 Basis of the Bargain. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 10 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF ELASTIC FOR THE SERVICES AND/OR GOODS 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.
11 TERM AND TERMINATION
11.1 Subscription Term. The initial Subscription Term will commence and expire in accordance with the start date and end date set forth on the Order Form, unless earlier terminated in in accordance with Section 11.2 below. Thereafter, solely in the case of a non-U.S. Government Customer, the Subscription shall automatically renew for additional one (1) year periods (or for such longer period as may be set forth on a renewal Order Form executed by the parties) 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 Subscription 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.
11.2 Termination. Non-U.S. Government Customers: Each party may terminate this Agreement and the Subscription, and all associated Order Forms, upon giving notice in writing to the other party if the non- terminating party commits a material 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. Upon the termination or expiration of this Agreement, the rights and obligations of the parties will, subject to Section 11.3 below, cease. U.S. Government Customers: Termination shall be governed by Federal Acquisition Regulation ("FAR") clause 52.212-4(l) and (m), and the Contract Disputes Act, 41 U.S.C. §§ 601-613.
11.3 Survival. Upon the expiration or termination of an Order Form or this Agreement, (i) Customer shall have no further rights under any affected Subscription(s); and (ii) any payment obligations accrued under Section 6, as well as the provisions of Sections 1, 4.4, 5, 7, 8, 9, 10, 11.3 and 12 of this Agreement will survive such expiration or termination.
12.1 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 ("FCPA") and the U.K. Bribery Act.
12.2 Assignment. Non-U.S. Government Customers: 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 (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning party's assets. Any assignment in violation of this Section 12.2 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 permitted successors and assigns. U.S. Government Customers: To the extent relevant and applicable, any assignment shall be subject to FAR 42.12 Novation and Change-of-Name Agreements, and FAR Clause 52.232-23, Assignment of Claims (JAN 1986).
12.3 Attorneys' 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. Notwithstanding the forgoing, for U.S. Government Customers, there shall be no entitlement to attorneys' fees, expert witness fees, costs of suit and expenses, except to the extent, if any, permitted by Federal statute and regulations.
12.4 Customer Identification. Customer consents to Elastic's identification of Customer as a user of the Software and the Support Services, on its website, through a press release issued by Elastic and in other promotional materials.
12.5 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.
12.6 Future Features and Functions. Customer understands and agrees that any features or functions of services or products referenced on any Elastic website, 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 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.
12.7 Governing Law, Jurisdiction and Venue.
(a) Non-U.S. Government Customers in California. If Customer is located in California (as determined by the Customer address on the applicable Order Form), this 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. All U.S. Government Customers: No matter where located, for all U.S. Government Customers this Agreement shall be governed by the Federal law of contracts.
(b) Non-U.S. Government 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.
(c) All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The non U.S. Government 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.
(d) Equitable Relief. A breach or threatened breach, by either party of Section 7 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond. Notwithstanding the forgoing, the parties acknowledge that with respect to non-U.S. Government Customers equitable remedies may not be available unless, and to the extent, expressly provided in Federal statute and regulations.
12.8 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 substantially 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.
12.9 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 the Order Form. Notices to Elastic may also be sent to email@example.com. 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 12.9.
12.10 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.
12.11 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.
12.12 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.
12.13 Suggestions, Ideas and Feedback. Subject to its obligations under Section 7 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 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.
12.14 Entire Agreement; Amendment. This Agreement, together with any Order Forms executed by the parties, and the Support Services Policy, each of which is hereby incorporated herein by this reference, constitutes 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. In the event of any conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) an applicable Order Form, (ii) this Agreement, and (iii) the Support Services Policy. 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 Subscription, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this 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 their duly authorized representatives. The parties agree that the terms and conditions of this Agreement are a result of mutual negotiations. Therefore, the rule of construction that any ambiguity shall apply against the drafter is not applicable and will not apply to this Agreement. Any ambiguity shall be reasonably construed as to its fair meaning and not strictly for or against one party regardless of who authored the ambiguous language.
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