Elastic Single Transaction Marketplace Reseller Agreement

NOT FOR EDITING OR NEGOTIATION.

Effective Date: 12 April 2022

This ELASTIC SINGLE MARKETPLACE TRANSACTION RESELLER AGREEMENT (“Agreement”), is entered into by and between the Elastic entity set forth in Section 11.8 (“Elastic”), and the person or entity (“Reseller”) seeking to resell Elastic Offerings to a Customer on a Marketplace (as those terms are defined below), as of the date such Elastic Offering is purchased (“Effective Date”).

1. DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings, and other defined terms shall have the meanings set forth where such terms are first used:
1. 1.1 “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
2. 1.2 Reserved.
3. 1.3 “Customer” means an end user customer in the Territory to which Reseller resells Elastic Offerings on a Marketplace. Customer may include a managed services provider if so authorized in the applicable Customer Agreement.
4. 1.4 “Customer Agreement” means the applicable customer agreement presented with the Elastic Offering in the Marketplace, unless Elastic and Customer have entered into a Written Agreement, in which case, Customer Agreement means the Written Agreement.
5. 1.5 “Elastic Offerings” means the Elastic products and/or services on a Marketplace available for resale pursuant to the terms of this Agreement.
6. 1.6 “Intellectual Property Rights” means any and all now known or hereafter existing (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights, trade dress and similar rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout rights, design rights, and other proprietary rights of every kind and nature; and (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
7. 1.7 “Marketplace” means a cloud service provider marketplace.
8. 1.8 Reserved.
9. 1.9 Reserved.
10. 1.10 Reserved.
11. 1.11 Reserved.
12. 1.12 “Term” has the meaning given to it in Section 6.1.
13. 1.13 “Territory” means the world, except with respect to countries, territories, or jurisdictions where the marketing, sale or distribution of the Elastic Offerings is prohibited by the laws or regulations of the United States or the laws or regulations applicable to Reseller (including applicable export laws) or the applicable laws and regulations of such countries, territories, or jurisdictions.
14. 1.14 “U.S. Public Sector Territory” means (i) sales to U.S. Federal government end users, (ii) sales to contractors and consultants formally authorized to make purchases off of, or under, a United States General Services Administration (“GSA”) Federal Supply Schedule (“FSS”) or Multiple Award Schedule (“MAS”) Contract, a National Aeronautics and Space Administration (“NASA”) Solutions for Enterprise-Wide Procurement (“SEWP”) Government-Wide Acquisition Contract (“GWAC”) and/or other U.S. federal government purchasing vehicle(s) identified by name and number herein, or as otherwise agreed in writing by the parties, (iii) sales to all state governments and agencies in the United States, (iv) sales to all local governments and agencies in the United States, and (v) sales to all public educational institutions in the United States.
15. 1.15 “Written Agreement” means, with respect to a Customer and an Elastic Offering purchased through a Marketplace, a written agreement between Elastic and the Customer that (i) by its terms, governs the subject matter addressed in the applicable Customer Agreement for such Elastic Offering; (ii) was entered into on the same date as or prior to the date of the applicable purchase; and (iii) remains in force and effect as of the date of the applicable purchase.
2. APPOINTMENT
1. 2.1 Reseller Appointment. Subject to all of the terms and conditions of this Agreement, Elastic hereby appoints Reseller as an authorized, non- exclusive, reseller of Elastic Offerings to Customer on the Marketplace, and grants Reseller the non-transferable, non-sublicensable, revocable right to market and resell Elastic Offerings directly to the Customer on the Marketplace, solely (i) for use by such Customer only and without any right of further resale and (ii) pursuant to the applicable Customer Agreement(s). Reseller acknowledges and agrees that Reseller’s resale of products or services through a Marketplace does not qualify Reseller for Elastic’s authorized reseller program, including any benefits thereunder, or entitle Reseller to market or resell any Elastic products or services other than the Elastic Offerings or in any channel other than the Marketplace. Reserved.
2. 2.2 Reserved.
3. OWNERSHIP
1. 3.1 Ownership of rights. Except for the limited license rights expressly provided herein, Elastic and its suppliers have and shall retain all right, title, and interest in and to the Elastic Offerings (including all materials provided by Elastic in connection therewith), all modifications to, and derivative works (including localization and translations) based upon, and all Intellectual Property Rights in and to, all of the foregoing. Reseller agrees not to infringe, misappropriate, or violate any Intellectual Property Rights of Elastic.
2. 3.2 Reserved.
4. PURCHASES ON A MARKETPLACE, MARKETPLACE BILLING AND TAXES
1. 4.1 Purchases on a Marketplace. Subject to all of the terms and conditions of this Agreement, Reseller may purchase Elastic Offerings for resale to the Customer, or authorize a Customer to purchase Elastic Offerings using Reseller’s authorized Marketplace billing account. No such purchases will be binding on Elastic unless Customer has consented, in a legally enforceable manner, to an applicable Customer Agreement.
2. 4.2 Marketplace Billing and Additional Charges.
  1. 4.2.1 Marketplace Billing. Reseller will be billed, and agrees to pay, (i) the fees specified on the applicable Elastic Offering pricing page(s), including any notes included on such page(s) or in any pricing tables included with the offer accepted by Reseller or its Customer in the Marketplace, and (ii) any Additional Charges (as defined below). Reseller agrees that all fees and Additional Charges shall be paid through billing of Reseller’s account with such Marketplace and that any refund to which Reseller or its Customer may be entitled under this Agreement may be provided in the form of a credit back to Reseller’s account with such Marketplace. Non-payment by Customers will not relieve Reseller of its obligation to pay. All payments are non-refundable.
  2. 4.2.2 Additional Charges. Reseller acknowledges that the Customer may, under the terms of the applicable Customer Agreement(s), incur additional charges (“Additional Charges”) during the term of the Elastic Offering(s).
3. 4.3 Reserved.
4. 4.4 Reserved.
5. RESELLER OBLIGATIONS
1. 5.1 Reserved.
2. 5.2 Reserved.
3. 5.3 Reserved.
4. 5.4 No Unauthorized Representations or Warranties. Reseller shall make no representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Elastic Offerings, which are in addition to or inconsistent with those set forth herein or the terms of the applicable Customer Agreement. Reseller shall be solely responsible for, and Elastic shall have no legal obligation to honor, any warranties that Reseller provides to Customers to the extent that such warranties are broader or greater in scope than those made by Elastic to Reseller hereunder or by Elastic to Customer under the applicable Customer Agreement.
5. 5.5 Business Practices. Reseller agrees not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Elastic, and agrees to comply with all applicable federal, state, and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) while performing its duties under this Agreement.
6. 5.6 Reserved.
7. 5.7 Reserved.
8. 5.8 Insurance and Indemnification. Reseller shall at its own cost put in place and at all times maintain during the Term and for two (2) years thereafter, at its own cost and expense, appropriate and sufficient commercial general liability insurance with a reputable insurance company to cover the activities of Reseller contemplated in this Agreement. Upon request, Reseller will provide Elastic certificates of insurance for all insurance coverage. Reseller shall defend, indemnify and hold harmless Elastic and its Affiliates from and against any and all costs, liabilities, damages and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting from any third party claim that results from or is related to: (i) any breach by Reseller of any representation, warranty or covenant of this Agreement, (ii) the making, statement or issuance by Reseller of any warranty or representation not authorized in writing by Elastic, (iii) improper or illegal use of the Elastic Offerings by Reseller, or (iv) any act, omission, obligation, or other liability of Reseller or any of its agents related to Reseller's business.
9. 5.9 Reserved.
6. TERM OF AGREEMENT
1. 6.1 Term. This Agreement is effective as of the Effective Date and shall continue in force and effect for a period of ninety (90) days, unless earlier terminated in accordance with this Section 6 or extended by the mutual, written agreement of the parties (e-mail sufficient).
2. 6.2 Termination. Either party may terminate this Agreement for any reason or no reason upon ten (10) days’ prior written notice to the other party. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement. This Agreement shall also terminate automatically if Reseller is no longer authorized by the cloud service provider managing a Marketplace to resell products and/or services on that Marketplace for any reason. Termination is not an exclusive remedy and, except as expressly provided herein, the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, at law, or in equity.
3. 6.3 Effect of Termination. Upon any expiration or termination of this Agreement, Reseller shall immediately (i) cease to be an authorized reseller of Elastic Offerings, and will have no right to market, sell or distribute the Elastic Offerings or hold itself out as an authorized reseller of Elastic, (ii) cease use of and destroy any and all copies of Elastic’s Confidential Information, and (iii) pay any amounts then due and outstanding. Any Elastic Offerings sold by Reseller prior to the termination of the Agreement, and Reseller’s payment obligations associated therewith, shall survive in accordance with the terms of the applicable Customer Agreement.
4. 6.4 No Liability for Termination. To the greatest extent permitted by applicable law, in the event of termination of this Agreement by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of either party. Termination shall not, however, relieve either party of obligations incurred prior to the termination of this Agreement.
5. 6.5 Survival. Sections 3, 4, 5.8, 6.3, 6.4, 6.5, 7, 8, 10 and 11 shall survive any termination or expiration of this Agreement.
7. WARRANTY AND DISCLAIMER
1. 7.1 Limited Warranty. Any warranty for Elastic Offerings will be provided directly from Elastic to Customer under the applicable Customer Agreement.
2. 7.2 Disclaimer of Warranties. NO WARRANTIES ARE PROVIDED TO RESELLER UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE CUSTOMER AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ELASTIC OFFERINGS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ELASTIC AND ITS LICENSORS MAKE NO ADDITIONAL WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE ELASTIC OFFERINGS OR ANY OTHER MATERIALS OR SERVICES MARKETED, SOLD OR DISTRIBUTED BY RESELLER AND/OR FURNISHED OR PROVIDED TO ANY RESELLER AND/OR CUSTOMER UNDER THIS AGREEMENT OTHER THAN THOSE EXPRESSLY SET OUT IN AN APPLICABLE CUSTOMER AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTIC AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT WITH RESPECT TO THE ELASTIC OFFERINGS AND ANY OTHER MATERIALS PROVIDED BY ELASTIC HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING.
8. LIMITATION OF LIABILITY
1. 8.1 Excluded Damages. IN NO EVENT SHALL RESELLER 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 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 (I) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (CONFIDENTIAL INFORMATION), (II) AMOUNTS PAYABLE BY RESELLER UNDER SECTION 4 OF THIS AGREEMENT, (III) RESELLER’S INDEMNIFICATION OBLIGATIONS, AND (IV) VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER THROUGH THE MARKETPLACE FOR THE AFFECTED ELASTIC OFFERINGS DELIVERED AND/OR MADE AVAILABLE TO THE CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT.
3. 8.3 Basis of the Bargain. EACH PARTY AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9. RESERVED
10. CONFIDENTIAL INFORMATION
1. 10.1 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 all materials and all communications concerning Elastic’s or Reseller’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 Elastic Offerings, anything provided by either party to the other in connection with Elastic Offerings provided to Customers under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know- how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party.
2. 10.2 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 to Affiliates or as necessary to carry out its duties under this Agreement without the other party’s prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.
3. 10.3 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 the Confidential Information, as evidenced by appropriate documentation.
4. 10.4 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 acquirers, accountants, attorneys, and parent organizations pursuant to the terms of a non- disclosure or confidentiality agreement. Where the Elastic Offering includes a hosted service (e.g., a SaaS offering), the hosting services provider may receive, subject to a confidentiality obligation, information related to the sale and use of the Elastic Offering.
5. 10.5 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 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.

11. MISCELLANEOUS

11.1 Anti-Corruption. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti- Corruption Laws”). Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this Agreement. Each party understands that failure to comply with the provisions of any applicable Anti-Corruption Laws is grounds for immediate termination of this Agreement and any payments due thereunder. Each party ("Indemnitor") shall indemnify the other party and its Affiliates (collectively, "Indemnitee") in connection with any act of the Indemnitor or any of its Affiliates that results in a government initiated allegation, investigation or prosecution of the Indemnitee related to the Ant- Corruption Laws (collectively, "Corruption Claims") and shall pay (i) the actual costs and fees reasonably incurred by the Indemnitee as a result of such Corruption Claims, and (ii) any penalties and fines imposed on the Indemnitee by a court or regulatory authority of competent jurisdiction as a result of such Corruption Claims. The Indemnitor shall also defend and/or settle, and hold the Indemnitee harmless from, any Corruption Claim; provided, the Indemnitor shall not enter into any settlement agreement in connection with a Corruption Claim that requires any admission of liability or wrongdoing on the part of the Indemnitee or any of its Affiliates or which imposes any obligation on the Indemnitee or any of its Affiliates, with the prior written consent of the Indemnitee and its applicable Affiliates. The Indemnitee and its applicable Affiliates may participate in the defense of each Corruption Claim at their own cost and expense.
11.2 Assignment; Subcontracting. Elastic may assign this Agreement to any Affiliate or to any assignee of all or substantially all of Elastic’s assets (whether pursuant to a merger, stock sale, asset sale, change of control or otherwise). Reseller may not assign or transfer this Agreement, in whole or in part, directly or by operation of law, without Elastic’s prior written consent. Any attempt by Reseller to transfer or assign this Agreement without such written consent shall be void, ab initio, and of no effect. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Nothing will restrict Elastic from subcontracting its obligations under this Agreement or any Customer Agreement to any third parties.
11.3 Attorney’s Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement (excluding any mediation required under this Agreement), the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, “prevailing party” includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
11.4 Export Control. Reseller acknowledges that the Elastic Offerings, and technologies related thereto are subject to the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control (“Export Control Laws”), as amended. Reseller is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Elastic goods, software or technology or disclose any Elastic software or technology to any person contrary to such laws or regulations. Reseller acknowledges that remote access to Elastic Offerings may in certain circumstances be considered a re-export of such Elastic Offerings, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Reseller agrees to fully indemnify Elastic for any act or failure to act that results in an allegation, investigation (whether internal or government-initiated), or prosecution of Elastic related to the Export Control Laws, including all such associated costs, fees, penalties, fines, consequential damages, settlements, and related financial incurrences of Elastic.
11.5 Feedback. Reseller may volunteer feedback to Elastic, and/or its Affiliates, about the Elastic Offerings (“Feedback”). Elastic and its Affiliates shall be irrevocably entitled to use that Feedback, for any purpose and without any duty to account. provided that, in doing so, they may not breach their obligations of confidentiality under Section 10 of this Agreement.
11.6 Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of or default under this Agreement as a result of any cause or condition beyond such party’s reasonable control.
11.7 Future Features and Functions. Reseller 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 General Availability (“GA”) release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for Elastic Offerings remains at Elastic’s sole discretion. Accordingly, Reseller agrees that it is purchasing for resale the Elastic Offerings based solely upon features and functions that are currently available as of the time of purchase on the Marketplace, and not in expectation of any future feature or function.

11.8 Elastic Entity; Governing Law; Jurisdiction and Venue.

11.8.1 U.S. Public Sector Territory. If Reseller is selling to a Customer in the U.S. Public Sector Territory, then this Section 11.8.1 shall apply. Reseller is contracting with Elasticsearch Federal Inc. If Reseller is located in California (as determined by the Reseller address on Reseller’s Marketplace account), 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. If Reseller is located anywhere other than California (as determined by the Reseller address on Reseller’s Marketplace account), 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. The additional terms set forth in Attachment 1 apply if Reseller is reselling to a Customer in the U.S. Public Sector Territory.

11.8.2 All Other Resellers. Except as provided in Section 11.8.1, Reseller is contracting with the Elastic entity listed in the table below based upon Reseller’s location (as determined by the Reseller address on Reseller’s Marketplace account).

If Reseller is in:	Reseller is contracting with:	The governing law is:	The court(s) having exclusive jurisdiction are:
Australia	Elasticsearch Pty Ltd	State of New South Wales	New South Wales
Canada	Elasticsearch BV	Canada	Province of Ontario
France	Elastic International BV (EUR) or Elasticsearch BV (USD)	France	Paris
Germany	Elastic International BV (EUR) or Elasticsearch BV (USD)	Federal Republic of Germany	Munich, Germany
Hong Kong, China	Elasticsearch BV	Hong Kong	Arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre
Japan	Elasticsearch KK	Japan	Tokyo District Court
Korea	Elasticsearch BV	Republic of Korea	Seoul Central District Court
Singapore	Elasticsearch BV	Singapore	Arbitration in Singapore, with three arbitrators and in English, in accordance with the Arbitration Rules of the Singapore International Arbitration Centre
The Netherlands	Elastic International BV (EUR) or Elasticsearch BV (USD)	Netherlands	Amsterdam, The Netherlands
United Kingdom	Elasticsearch Limited	England & Wales. The provisions of the Contracts (Rights of Third Parties) of 1999 is hereby excluded	England & Wales
United States of America	Elasticsearch, Inc.	State of California, United States	Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court in Santa Clara County
United States of America - the Federal Government	Elasticsearch Federal Inc.	Applicable federal laws of the United States of America. To the extent permitted by federal law, the laws of the State of California (excluding California’s choice of law rules) will apply in the absence of applicable federal law.	Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court in Santa Clara County
Another country not listed here	Elastic International BV (EUR) or Elasticsearch BV (USD)	Netherlands	Amsterdam, The Netherlands

11.8.3 All Resellers. This Agreement shall be construed exclusively in accordance with the applicable governing law as provided in this Section 11.8 without regard to conflict of law rules. All suits will be brought in the corresponding court(s) as described in this Section 11.8, and each party consents to personal jurisdiction and venue therein. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement regardless of when or where adopted. A breach or threatened breach, by either party of Section 10 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.
11.8.4 Country-Specific Terms. The additional terms set forth in Attachment 2 apply to resellers outside the United States on a country-specific basis.

11.9 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding to the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
11.10 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.11 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if such communication (i) with respect to Reseller, is sent to the e-mail address associated with Reseller’s Marketplace account, and (ii) with respect to Elastic, is sent to legal@elastic.co. Reseller consents to the disclosure of its contact information, including the e-mail address associated with Reseller’s Marketplace account, by the applicable cloud service provider so that Elastic may provide such notices to Reseller. Either party may from time to time change its e-mail address for notices under this section by giving the other party notice of the change in accordance with this section.
11.12 Relationship of the Parties. The relationship of the parties hereunder shall be that of independent contractors, and nothing herein shall be deemed or construed to create any employment, agency, or fiduciary relationship between the parties. Each party shall be solely responsible for the supervision, direction, control, and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits, and nothing herein will be deemed to result in either party having an employer-employee relationship with the personnel of the other party.
11.13 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
11.14 Entire Agreement. This Agreement, along with any valid amendments hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a scanned copy will have the same force and effect as execution of an original, and a scanned signature will be deemed an original and valid signature. The parties hereby expressly acknowledge and agree that if Reseller issues any purchase orders or similar documents in connection with its purchase and/or resale of Elastic Offerings, 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 Reseller’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 Reseller 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.

ATTACHMENT 1

U.S. PUBLIC SECTOR TERRITORY PROVISIONS

The following additional terms apply if Reseller is reselling to a Customer in the U.S. Public Sector Territory.

1. A new Section 5.4.1 is added to the Agreement as follows: Reseller will assert in writing in all offers, proposals, bids, responses to Requests for Quotes or Requests for Information, contractual documentation, or similar documents to any Customers or potential Customers in the U.S. Public Sector Territory that each Elastic Offering is a Commercial Item as that term is defined in the FAR at 48 C.F.R. § 2.101, comprised of, inter alia, commercial computer software, commercial computer software documentation, and/or commercial technical data, and that the Elastic Offering(s) required to be delivered, or which will be delivered, to any Customer shall be delivered subject to Elastic’s applicable customary commercial license and with less than/other than Unlimited Rights. Reseller shall provide a copy of Elastic’s Customer Agreement to each Customer or prospective Customer. Reseller shall ensure that all relevant contractual documentation with all Customers shall expressly set forth that, if acquired by or on behalf of a civilian agency of the U.S. Government, such agency acquires the Elastic Offering(s) as a Commercial Item(s) subject to the applicable Customer Agreement as specified in 48 C.F.R. 12-212 (Computer Software) and 12.211 (Technical Data). Similarly, Reseller shall ensure that all relevant contractual documentation with all Customers shall expressly set forth that, if acquired by or on behalf of an agency within the Department of Defense (“DOD”), such agency acquires the Elastic Offering(s) as a Commercial Item(s) subject to the applicable Customer Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.V.R. 227-7202-4, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12-212 and 48 C.F.R. 227-7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in commercial computer software, commercial computer software documentation or commercial technical data related to the Elastic Offerings under this Agreement and in any subcontract or contract under which the Elastic Offerings are acquired or licensed. A Customer Agreement shall be made a part of any contractual instrument (whether termed a Contract, Agreement, Purchase Order, Task Order, Prime Contract, or called by any other name) between the Reseller and any Customer of Elastic Offerings.
2. A new Section 5.4.2 is added to the Agreement as follows: Elastic will execute, as necessary and appropriate, the Buy American Act (“BAA”) Certificate at FAR 52.225-2 (MAY 2014) and the Trade Agreements Act (“TAA”) Certificate at FAR 52.225-6 (MAY 2014), and the representations and warranties that are mandatory by federal procurement law for federal Commercial Item subcontractors (generally FAR 52.212-3). Elastic will accept: the Subcontracts for Commercial Items clause or the FAR clauses listed in FAR 52.212-5(e)(1), Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Items; and DFARS 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts), and solely with respect to DoD Prime Contracts, DFARS 252.227-7015, Technical Data – Commercial Items and those specific DFARS clauses specified in DFARS Case 2007-D003, Presumption of Development Exclusively at Private Expense, Final Rule, 76 Fed.Reg. 58144, September 20, 2011, but only if required by the Reseller’s Prime Contract, and if relevant and applicable. Under no circumstances will Elastic accept the FAR 52.227-19, Commercial Computer Software License clause. Elastic’s pricing, terms and conditions under this Agreement are based on its offering Commercial Items, including COTS Products, on favored customer and preferential terms and consequently Elastic will not accept any “flow down” clauses that are not mandatory under federal procurement law for Commercial Item subcontracts. Reseller shall not “flow down” or otherwise attempt to impose upon Elastic any FAR clauses or Agency-specific FAR Supplement clauses in relation to any Order, Purchase Order, Task Order or any other arrangement, and any attempt to do so is repudiated and both parties hereby confirm and acknowledge shall be considered null and void. Opportunities that require other different representations and warranties from Elastic, or the acceptance of other FAR or Agency-specific FAR Supplement clauses should be identified with specificity so that Elastic may evaluate and determine, in its sole discretion, whether it is appropriate to pursue such opportunity, and if so, whether it is appropriate to pursue such opportunity under this Agreement. In the event that Elastic elects to pursue such an opportunity, Elastic will provide a price for the additional representations, warranties and/or FAR or Agency-specific FAR Supplement clauses.
3. Section 5.6 of the Agreement (currently a “Reserved” section) is hereby deleted in its entirety and replaced as follows: Reseller certifies and represents that it (i) has not made or solicited and will not make or solicit kickbacks in violation of FAR 52.203-7 or the Anti-Kickback Act of 1986 (41 U.S.C. chapter 87), both of which are incorporated herein by this specific reference; (ii) has and will continue to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity; and (iii) has and will continue to comply with the Contractor Code of Business Ethics and Conduct requirements set forth in the FAR Subpart 3.10 and FAR 52.203-13, as relevant and applicable. Reseller warrants and represents that it is eligible to receive and perform federal government contracts and is a responsible contractor as that term is used in U.S. federal government contracting.

ATTACHMENT 2

COUNTRY-SPECIFIC PROVISIONS

1. Australia
1. 1.1 A new sentence is hereby added to the beginning of Section 7.2 of the Agreement as follows: NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT RESELLER’S NON-EXCLUDABLE RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH).
2. 1.2 A new Section 7.3 is hereby added to the Agreement as follows: Australian Consumer Law. Despite anything in this Agreement, Elastic’s goods come with guarantees that cannot be excluded under the Australian Consumer Law (as set out in the Competition and Consumer Act 2010 (Cth) ("ACCA")) if Reseller is deemed a 'Consumer' under ACCA. Then Reseller is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Furthermore, Reseller will also be entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3. 1.3 A new section 8.4 is hereby added to the Agreement as follows: NOTHING IN THIS AGREEMENT SHALL OPERATE OR HAVE EFFECT SO AS TO LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD INCLUDING FRAUDULENT MISREPRESENTATION OR FOR ANY LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED UNDER APPLICABLE LAW.
4. 1.4 A new Section 8.5 is hereby added to the Agreement as follows: Australian Consumer Law. IF THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER LEGISLATION STATES THAT THERE IS A GUARANTEE IN RELATION TO ANY GOOD OR SERVICE SUPPLIED BY ELASTIC IN CONNECTION WITH THIS AGREEMENT, AND ELASTIC’S LIABILITY FOR FAILING TO COMPLY WITH THAT GUARANTEE CANNOT BE EXCLUDED BUT MAY BE LIMITED, SECTIONS 8.1, 8.2 AND 8.3 DO NOT APPLY TO THAT LIABILITY. INSTEAD, ELASTIC’S LIABILITY FOR THAT FAILURE IS LIMITED TO (AT THE ELECTION OF ELASTIC), IN THE CASE OF A SUPPLY OF GOODS, ELASTIC REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS OR REPAIRING THE GOODS, OR IN THE CASE OF A SUPPLY OF SERVICES, ELASTIC SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
5. 1.5 Section 11.3 (Attorney’s Fees) of the Agreement is hereby deleted in its entirety.
2. Canada
1. 2.1 A new section 11.15 is hereby added to the Agreement as follows: Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. At the request of the parties, the official language of this Agreement and all communications and documents relating hereto is the English language, and the English-language version shall govern all interpretation of the Agreement. A lademande des parties, lan langue officielle de la presente convention ainsi que toutes communications et tous documents sy rapportant est la langue anglaise, et la version anglaise est celle que regit toute interpretation de la presente convention
3. France
1. 3.1 The first sentence of Section 4.1 of the Agreement is hereby deleted in its entirety and replaced with the following: All amounts payable by Reseller to Elastic under this Agreement are exclusive of any value added tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use or provision of the Elastic Offerings, the execution or performance of this Agreement or otherwise; provided, however, that Reseller shall have no liability for any net income, net worth or franchise taxes assessed on Elastic by the United States or any state thereof.
2. 3.2 The first and second sentences of Section 6.2 of the Agreement are hereby deleted in their entirety and replaced with the following: Either party may terminate this Agreement for any reason or no reason, ipso jure and without having to file a claim, upon ten (10) days’ prior written notice to the other party. Either party may terminate this Agreement with immediate effect, ipso jure and without having to file a claim, by notice in writing to the other party if the other party commits a material breach of this Agreement.
3. 3.3 Section 8.1 of the Agreement is hereby deleted in its entirety and replaced with the following: SUBJECT TO SECTION 8.3 BELOW AND PURSUANT TO SECTIONS 1188 AND 1231-3 OF THE FRENCH CIVIL CODE, THE PARTIES AGREE THAT, EXCEPT FOR A PARTY’S GROSS NEGLIGENCE (“FAUTE LORDE”) OR WILLFUL MISCONDUCT (“DOL”), IN NO EVENT SHALL RESELLER OR ELASTIC OR THEIR RESPECTIVE LICENSORS 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 FOR ANY INDIRECT DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT.
4. 3.4 A new sub-section (V) is hereby added to Section 8.2 of the Agreement as follows: AND (V) A PARTY’S GROSS NEGLIGENCE (“FAUTE LORDE”) OR WILLFUL MISCONDUCT (“DOL”),
5. 3.5 Section 8.3 of the Agreement is hereby deleted in its entirety and replaced with the following: THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF ELASTIC FOR THE ELASTIC OFFERINGS PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS.
6. 3.6 Section 9.3(iv) of the Agreement is hereby deleted in its entirety and replaced with the following: (iv) any third party open source software included in an Elastic Offering except to the extent that any Infringement Claim results from Elastic’s failure to comply with the license agreement(s) applicable to such third party open source software.
7. 3.7 Section 11.3 (Attorneys’ Fees) of the Agreement is hereby deleted in its entirety.
8. 3.8 The word “acknowledges” is replaced by “is informed” in the first and third sentences following the word “Resellers” of Section 11.4 (Export Control) of the Agreement.
9. 3.9 Section 11.5 of the Agreement is hereby deleted in its entirety and replaced with the following: Feedback. Subject to its obligations under Section 10 of this Agreement (Confidential Information), Elastic will be irrevocably free to use without restriction of any kind for any purpose, all suggestions, ideas and/or feedback (collectively, “Feedback”) provided to Elastic by Reseller and their respective employees, contractors or other agents, with respect to the Elastic Offerings. 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.
10. 3.10 Section 11.6 of the Agreement is hereby deleted in its entirety and replaced with the following: Force Majeure. 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 event of Force Majeure as defined under Article 1218 of the French Civil Code. Reseller expressly agrees that it shall not be relieved from its payment obligations by any act of Force Majeure.
11. 3.11 The last sentence of Section 11.8.3 (All Resellers) is hereby deleted in its entirety.
4. Germany
1. 4.1 Section 7.2 of the Agreement is hereby deleted in its entirety and replaced with the following: Reseller shall not be entitled to claim or commence proceedings for a breach of the warranty given under Section 7.1 above unless: (1) Reseller notifies Elastic in writing about the breach within fourteen (14) days of first becoming aware of said breach, and (ii) any proceedings commenced within twelve (12) months after such breach was first notified by Reseller in accordance with this Section.
2. 4.2 Section 8 of the Agreement is hereby deleted in its entirety and replaced with the following:
  1. 8.1 Elastic’s liability shall not be limited for: (a) losses caused intentionally or by gross negligence; (b) death, personal injury or damage to health; (c) losses in accordance with the German Product Liability Act in the event of product liability; nor (d) in any other cases where it cannot be limited under applicable German Law.
  2. 8.2 Elastic shall be liable for losses caused by the breach of its primary obligations. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which the parties may rely. If Elastic breaches its primary obligations through simple negligence, then its liability shall be limited to the losses typical and foreseeable at the time of the conclusion of the Agreement.
  3. 8.3 Save for the stipulation in Sections 8.1 and 8.2, the following restrictions shall apply:
    1. (a) Elastic's total liability for simple negligence under Section 8.2 with respect to one Order Form for typical and foreseeable losses shall be limited for any and all damages to the maximum of the single amount of the order value (100%) of the affected Order Form in the calendar year where the losses occurred. For the avoidance of doubt, this limitation of liability applies regardless of its legal cause (e.g. because of non-performance, impossibility of performance, warranty, delay, fault at conclusion of contract, breach of accessory obligation, rescission, tort). The parties agree that this limitation is fair in light of the potential damages of Reseller and the potential damages that can happen under the Agreement.
    2. (b) The no-fault liability in the German Civil Code (BGB) according to Section 536a para.1 Alt. 1 for defects that exist at the time of conclusion of this Agreement or of the respective Order Form is excluded.
  4. 8.4 Except as expressly set out in Sections 8.1, 8.2 and 8.3, Elastic’s liability shall be excluded.
  5. 8.5 Elastic may invoke contributory negligence on Reseller’s part. Reseller is especially obliged to perform routine backups and employ virus protection according to the current state of the art. Routine backups must occur at adequate intervals, but at least once a day, so that data can be restored with reasonable effort. In the case of a loss of data culpably caused by Elastic, Elastic’s liability is limited to the expenses that are incurred if routine backups are properly made and virus protection properly employed.
  6. 8.6 Without prejudice to (a) Reseller’s rights under § 812 BGB (German Civil Code) and (b) Section 8 of this Agreement, Reseller’s rights under § 536 BGB (German Civil Code) are hereby excluded.
3. 4.3 The words “SUBJECT TO SECTION 8 ABOVE” are hereby added to the beginning of Section 9.5 (Disclaimer) of the Agreement.
4. 4.4 The following is hereby added to the beginning of the second sentence of Section 10.1 of the Agreement: Notwithstanding the provisions of the German Trade Secrets Act (GeschGehG),
5. 4.5 Section 11.3 (Attorneys’ Fees) of the Agreement is hereby deleted in its entirety.
6. 4.6 The last three sentences of Section 11.14 (Entire Agreement) of the Agreement are hereby deleted in their entirety.
5. Hong Kong and China
1. 5.1 The following is hereby added at the end of Section 11.8.2 (All Other Resellers) of the Agreement: All disputes arising out of or in connection with this Agreement, including its existence and validity, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which SIAC Rules are deemed to be incorporated by reference in this Agreement. The tribunal shall consist of three arbitrators. The language of the arbitration shall be English.
6. Japan
1. 6.1 The last sentence of Section 7.2 of the Agreement is hereby deleted in its entirety and replaced with the following: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTIC AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES WITH RESPECT TO THE ELASTIC OFFERINGS AND ANY OTHER MATERIALS PROVIDED BY ELASTIC HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING.
2. 6.2 The last sentence of Section 11.8.3 (All Resellers) is hereby deleted in its entirety.
7. Singapore
1. 7.1 The following is hereby added at the end of Section 11.8.2 (All Other Resellers) of the Agreement: All disputes arising out of or in connection with this Agreement, including its existence and validity, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which SIAC Rules are deemed to be incorporated by reference in this Agreement. The tribunal shall consist of three arbitrators. The language of the arbitration shall be English.
8. United Kingdom
1. 8.1 The words “SATISFACTORY QUALITY,” are added after “MERCHANTABILITY,” in Section 7.2 (Disclaimer of Warranties) of the Agreement
2. 8.2 The words “TO THE EXTENT PERMITTED BY LAW,” are hereby added before “IN NO EVENT” in Section 8.2 (Damages Cap) of the Agreement.
3. 8.3 A new Section 8.4 is hereby added to the Agreement as follows: NOTHING IN THIS AGREEMENT SHALL OPERATE OR HAVE EFFECT SO AS TO LIMIT OR EXCLUDE THE LIABILITY OF A PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD INCLUDING FRAUDULENT MISREPRESENTATION OR FOR ANY LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED UNDER APPLICABLE LAW.
4. 8.4 Section 11.3 (Attorneys’ Fees) of the Agreement is hereby deleted in its entirety.
5. 8.5 The last sentence of Section 11.8.3 (All Resellers) is hereby deleted in its entirety.
9. The Netherlands and any country not specifically listed in the table in Section 11.8.2 of the Agreement
1. 9.1 The following is hereby added to the end of Section 8.1 of the Agreement: HOWEVER, WITH THE EXCEPTION OF DAMAGES CAUSED BY GROSS NEGLIGENCE (BEWUSTE ROEKELOOSHEID) OR WILFUL MISCONDUCT (OPZET) OF RESELLER OR ELASTIC.

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