Terms and Conditions

NOT FOR EDITING OR NEGOTIATION

Version Effective Date: May 2024

This Terms and Conditions, including all attachments, any Addendum (as defined below), schedules and exhibits, and documents at referenced URLs, all of which are incorporated herein by this reference (collectively, this "Agreement"), is entered into by and between the Elastic entity ("Elastic"), and the entity identified as the "Vendor" ("Vendor") on the first Order Form signed by both Parties referencing this Agreement.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN VENDOR AND ELASTIC. VENDOR IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM. BY SIGNING AN ORDER FORM, VENDOR CONFIRMS THAT VENDOR HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. UNLESS A NEGOTIATED MASTER SERVICES AGREEMENT (THE "MSA") HAS BEEN EXECUTED BETWEEN THE PARTIES.

1. 1. Fees. As consideration for the Services to be provided by Vendor and other obligations, Elastic shall pay to Vendor the amounts specified in applicable PO, Ordering Document, or SOW. Invoiced amounts will be due and payable sixty (60) days from the receipt of a correct invoice, shared to ap@elastic.co, unless otherwise specified in such Statement of Work or other Ordering Document.
2. 2. Expenses. Vendor shall not be authorized to incur on behalf of Elastic any expenses without the prior consent of Elastic unless otherwise permitted in an applicable PO, Ordering Document, or SOW. As a condition to receipt of reimbursement, Vendor shall be required to submit to Elastic reasonable evidence that the amount involved was expended and related to Services provided under this Agreement.
3. 3. Term and Termination. Vendor shall serve as a Vendor to Elastic for a period commencing on the Effective Date and continuing for a period as set forth in an applicable Elastic purchase order ("Elastic Purchase Order" or "PO"), applicable ordering document ("Ordering Document") or Statement of Work ( "SOW") unless terminated in accordance with this Agreement. For the clarity of Section 3 any references to auto-renewal clauses in an Ordering Document is deemed null and void. Elastic may terminate this Agreement at any time upon thirty (30) days' written notice to Vendor. In the event of such termination, Vendor shall be paid for any portion of the Services that have been performed prior to the effective date of such termination. Either party may terminate immediately in case of a material breach of this Agreement by the other party which is not cured within 30 days after receipt of such written notice detailing the scope and nature of the material breach. In the event of such termination - except with respect to termination by Elastic for uncured material breach by Vendor - for which Elastic shall not be required to pay for the Services the subject of such material breach, Vendor shall be paid for any portion of the Services that have been performed prior to the effective date of such termination. In the event of such termination by Elastic, Vendor shall reimburse Elastic for all pre-paid unused Services.
   1. (a) Termination Assistance. In the event of Termination by either party, the Vendor agrees to provide reasonable assistance in performing the Service to facilitate the transition assistance, which may include but not limited to providing guidance, completing Work Product and providing transition support. This Termination Assistance provision shall remain in effect throughout the term including any renewals without any charge to Elastic and shall deliver the services or the extracted data in a format mutually agreed by the parties.
4. 4. Independent Contractor. Elastic and Vendor shall be independent contractors under this agreement, and nothing herein or in any PO, Ordering Document, or SOW shall be construed as creating an employment relationship between Elastic and Vendor.
   1. (a) No Authority to Bind Elastic. Neither Vendor, nor any partner, agent or employee of Vendor, has authority to enter into contracts that bind Elastic, or create obligations on the part of Elastic without the prior written authorization of Elastic.
5. 5. Supervision of Vendor's Services. All of the services to be performed by Vendor, including but not limited to the Services, will be as agreed between Vendor and Elastic. Vendor will be required to report to an individual ("Supervisor") designated by Elastic concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the Supervisor.
6. 6. Confidential Information.
   1. (a) Elastic Information. Vendor agrees at all times during the term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of Elastic to the extent necessary to perform Vendor's obligations to Elastic under this Agreement, or to disclose to any person (including any employees of Vendor except as expressly permitted under this Agreement), firm, corporation or other entity without written authorization of Elastic, any Elastic Confidential Information. Vendor shall disclose Elastic Confidential Information only to those of its employees who: (a) have a need to know that information to perform Vendor's obligations to Elastic under this Agreement, and (b) have agreed in writing to non-disclosure obligations substantially similar to those in this Agreement. Vendor further agrees not to make copies of such Confidential Information except as authorized by Elastic. Vendor understands that "Elastic Confidential Information" means any Elastic proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, suppliers, customer lists and customers (including, but not limited to, customers of Elastic on whom Vendor called or with whom Vendor became acquainted in connection with the performance of Services under this Agreement), personal data (as defined in Section 10), prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information disclosed to Vendor either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by Vendor during the performance of Services. Vendor understands that Elastic Confidential Information includes, but is not limited to, information pertaining to any aspect of Elastic's business which is either information not known by actual or potential competitors of Elastic or other third parties not under confidentiality obligations to Elastic, or is otherwise proprietary information of Elastic or its customers or suppliers, whether of a technical nature or otherwise. Further, during the term of the Agreement and at any time following termination of the Agreement for any reason, with or without cause, Vendor shall not use any Elastic Confidential Information to attempt to negatively influence any of Elastic's clients or customers from purchasing Elastic products or services or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of Elastic. Vendor further understands that Elastic Confidential Information does not include any of the foregoing items which has become publicly and widely known and made generally available through no wrongful act of Vendor or of others who were under confidentiality obligations as to the item or items involved.
   2. (b) Prior Obligations. Vendor represents and warrants that Vendor's performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Vendor in confidence or in trust prior to commencement of this Agreement. Vendor warrants that Vendor has the right to disclose and/or use all ideas, processes, techniques and other information, if any, which Vendor has gained from third parties, and which Vendor discloses to Elastic or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Vendor agrees that Vendor shall not bundle with or incorporate into any deliveries provided to Elastic herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of Elastic.
   3. (c) Third Party Information. Vendor recognizes that Elastic has received and in the future will receive confidential or proprietary information from third parties subject to a duty on Elastic's part to maintain the confidentiality of such information and to use it only for certain limited purposes. Vendor agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Vendor's work for Elastic consistent with Elastic's agreement with such third party.
7. 7. Personal Data Processing. To the extent that Vendor processes information that relates to an identified or identifiable natural person and which is protected as "personal data," "personal information," or "personally identifiable information" under applicable Data Protection Laws ("Personal Data") as a service provider or processor (as applicable) on behalf of Elastic in connection with this Agreement (collectively "Elastic Personal Data"), Vendor shall comply with the terms and conditions of the Elastic Vendor Data Processing Addendum located at https://www.elastic.co/agreements/vendor-dpa which is incorporated herein by reference. Vendor must provide Elastic, via email notice to procurement@elastic.co, with a current list or link to any third party data processor engaged by Vendor to process Elastic Personal Data on Elastic's behalf to assist in fulfilling Vendor's obligations with respect to providing the Services pursuant to this Agreement ("Sub-processor") before disclosing Elastic Personal Data to such Sub-Processor. The list must include the Sub-processor's country of location and instructions for communicating to Elastic any updates to this list.
8. 8. Lead Data. To the extent that Vendor discloses or shares Personal Data with Elastic in connection with this Agreement, Vendor represents and warrants that: 1) it has the rights as required by law to disclose or share such Personal Data with Elastic; 2) it has provided proper notices and choices to individuals and obtained proper consents from individuals (where necessary) regarding such collection and disclosure as may be required under any applicable Data Protection Law; 3) that Elastic may use any or all of the Personal Data so disclosed or shared for its own purposes, including but not limited to developing and marketing Elastic products and services; and 4) that Elastic may further provide any or all of the Personal Data to third party vendors that provide certain functions and other services for Elastic, including but not limited to marketing in connection with Elastic's products and services. Following the disclosure of such Personal Data from the Vendor to Elastic, Elastic shall be deemed a controller or Business (as applicable), with respect to such Personal Data. For the avoidance of doubt, following such disclosure to Elastic, Vendor shall not be a processor or act as a services provider on behalf of Elastic. Rather, each party shall be deemed an independent controller or business with respect to its processing of such Personal Data and shall comply with all of their obligations under applicable Data Protection Laws in such role. "Data Protection Laws" means all data protection and privacy laws and regulations effective and applicable to the respective party in its role related to the processing of Personal Data pursuant to this Agreement, including but not limited to, the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("GDPR"), the EU Privacy and Electronic Communications Directive 2002 (ePrivacy Directive),the Data Protection Act 2018 and the GDPR as saved into UK law by virtue of section 3 of the UK's European Union (Withdrawal) Act 2018 (UK GDPR), the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (Swiss DPA), the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to have effect by virtue of section 2 of the UK's European Union (Withdrawal) Act 2018, the Canadian Anti Spam Law (CASL), the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA), the United States Federal Telephone Consumer Protection Act (TCPA) and Telemarketing Sales Rule (TSR), the United States The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 CAN-SPAM), the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. (2018) as amended by the California Privacy Rights Act of 2020 (CPRA) (together the CCPA), and any other US state privacy or data protection laws that have been enacted at the time of the parties execution of the Agreement, in each case as may be amended, superseded or replaced.
   
   In this Section, the terms "controller", "processor" and "process" will bear the meanings given to them in GDPR, and "business", "service provider", and "share" shall have the meanings given to them under the CCPA.
9. 9. Indemnification.
   1. (a) Elastic Indemnification. Each party shall indemnify and hold harmless the other party from and against any and all third-party claims incurred by, borne by or asserted against such party in any way relating to, arising out of or resulting from personal injury or damage to tangible property caused by any willfully or intentionally wrongful, or negligent, act or omission of any employee, agent or subcontractor of the indemnifying party relating to this Agreement.
10. 10. Compliance with Laws. Both parties acknowledge they are aware of, understand, and have 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. You acknowledge that the Elastic Products 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. You agree to notify us if your Products are controlled under such export control laws and regulations with any classification other than EAR99, prior to making such Products available to us under this Agreement. Each party agrees to comply with all such export control laws and regulations in connection with its performance of this Agreement, and will not export, re-export, otherwise transfer any of the other party's goods, software or technology or disclose any Product or related technology of the other party to any person contrary to such laws or regulations. Each party agrees to provide the other party with necessary information related to the export of its Products as the other party may reasonably request. You acknowledge that remote access to an Elastic Product may in certain circumstances be considered a re-export of such Product, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Vendor shall not use personnel or resources located in any country subject to trade sanctions imposed or administered by the European Union or US Office of Foreign Assets Control in the course of providing services to Elastic. Vendor to ensure and comply with latest security and privacy documentation, necessary for the service they are providing and shall provide a copy of their latest SOC2 Report or ISO certification to Elastic.
11. 11. Limitation of Liability. Neither party shall be liable to the other party for any indirect, special, consequential, punitive, or liquidated damages resulting from this Agreement or breach thereof. The total liability of either party under this Agreement shall be limited to the fees paid by Elastic to Vendor during the six (6) month term prior to the act/omission forming the basis of such claim.
12. 12. Insurance. During the Term of this Agreement, Vendor will maintain in full force and effect: (a) commercial general liability insurance (or equivalent third party liability insurance) covering bodily injury and property damage, with limits of at least USD $1,000,000 per occurrence and USD$2,000,000 in the aggregate, or the equivalent in local currency; (b) worker's compensation and employer's liability insurance with the statutory limits (if applicable in the jurisdiction) or compliance with any compulsory work place injury social scheme or government program. Vendor will maintain all such insurance with reputable carriers. Upon Elastic's written request, Vendor shall provide Elastic with evidence of insurance. Furthermore, Vendor shall provide at least thirty (30) days' written notice to Elastic prior to any cancellation, reduction, or material change in coverage.
13. 13. Elastic Code of Conduct. The Vendor agrees to comply with Elastic's Vendor Code of Conduct located at https://www.elastic.co/pdf/elastic-global-vendor-code-of-conduct.pdf, or has adopted and will comply with its own code of conduct that embodies the principles of Elastic's Vendor Code of Conduct.
14. 14. Miscellaneous.
    1. (a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties.
    2. (b) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
    3. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regards to any conflict or choice of law principles. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the federal or state courts located in Santa Clara County, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
       
       For Vendors located outside the USA, this Agreement shall be construed and enforced in accordance with the laws of The Netherlands, without regards to any conflict or choice of law principles. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the competent courts located in Amsterdam, The Netherlands, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
    4. (d) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number as set forth below, or as subsequently modified by written notice, with an email copy to legal@elastic.co.
    5. (e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
    6. (f) Force Majeure. Notwithstanding anything in the Agreement to the contrary, neither party will be liable for any failure or delay in performing an obligation under the Agreement due to any cause beyond its reasonable control, including any acts of God, accident, riots, war, terrorist act, actual or potential threat to public health applicable to a group or groups of people (including without limitation, epidemic and pandemic (e.g., COVID-19), whether or not new, ongoing or recurring), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, or national strikes ("Force Majeure Event"). Should either party cancel or postpone the Services due to a Force Majeure Event, Vendor shall refund to Elastic, upon Elastic's written request, all amounts paid under the Agreement with respect to such Services, and Elastic shall have no further payment obligations under the Agreement.
    7. (g) Trademarks. Any rights transferred, or license(s) granted in the Agreement, to Vendor with respect to Elastic's trademarks, service marks, trade names, logos, brands and related or similar identifying marks (the "Logos"), are hereby deleted from the Agreement and shall have no force or effect. To the extent the Agreement includes any licenses in favor of Vendor with respect to the Logos, Elastic hereby grants to Vendor, a limited, revocable, non-exclusive, non-transferrable, license, without right of sublicense, to use the Logos during the term of the Agreement solely to identify Elastic as a sponsor of the Event. Vendor will only use such Logos as permitted by Elastic in writing. Except as specifically set forth in the preceding sentences, Vendor will not acquire rights to and/or any interest in the Logos or in any other intellectual property owned by Elastic or its Affiliates. All goodwill arising from Vendor's use of the Logos shall inure to Elastic.
    8. (h) Successors and Assigns. Vendor may not assign this Agreement without the prior written consent of Elastic. This Agreement will be binding upon each party's permitted successors and assigns.
    9. (i) Entire Agreement. This Agreement, together with the Exhibits and any Ordering Document or SOW referencing this Agreement, is the entire agreement between the parties with respect to the subject matter hereof and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by the parties hereto. Any prior understandings and agreements between the parties regarding such subject matter are merged herein and superseded hereby. 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) this Agreement, (ii) an applicable Addendum (including any exhibits, attachments and addenda thereto), and (ii) an applicable Ordering Document or SOW (but only for the transaction thereunder).