Elastic Cloud Subscription Agreement
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This Elastic Cloud Subscription Agreement, including all attachments, addenda, schedules and exhibits, and documents at referenced URLs (this "Agreement") is entered into by and between Elasticsearch Pty Ltd, ACN 601 610 520, with its principal place of business located at 4th Floor, 17-19 Alberta Street, Sydney, New South Wales, 2000, Australia ("Elastic"), and the entity identified as the "Customer" ("Customer") on the signature block of the Elastic order form executed by Elastic and Customer or a Reseller, as applicable, as of the date specified in such Order Form ("Effective Date").
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 "Elastic Cloud" means Elastic's web-based service, located at https://www.elastic.co/cloud/as-a-service.
1.3 "Elastic Cloud Gold" means the gold Subscription Level of Elastic Cloud.
1.4 "Elastic Cloud Platinum" means the platinum Subscription Level of Elastic Cloud.
1.5"Elastic Cloud Standard" means the standard Subscription Level of Elastic Cloud.
1.6 "Eligible Features and Functions" means those features and functions of Elastic Cloud that are eligible for use with respect to the Subscription Level purchased by Customer.
1.7 "Order Form" means an ordering document pursuant to which Customer, or a Reseller acting on Customer's behalf, purchases Subscriptions under this Agreement.
1.8 "Project " means a specific Customer use case for Elastic Cloud.
1.9 "Reseller" means a third party authorized by Elastic to promote and resell Subscriptions.
1.10 "Resources" means memory and/or storage.
1.11 "Subscription" means the right of Customer to access and use Elastic Cloud, for a fixed period of time.
1.12 "Subscription Level" means Elastic Cloud Standard, Elastic Cloud Gold and/or Elastic Cloud Platinum, as indicated on an applicable Order Form. The Elastic Cloud Subscription Level purchased by Customer determines the specific Support Services that Customer is entitled to receive, and the Eligible Features and Functions of Elastic Cloud that Customer is entitled to use, as more fully described at https://www.elastic.co/cloud/as-a-service/subscriptions.
1.13 "Subscription Term" means the period of time for which a Subscription is valid, as further described in Section 11.1 of this Agreement.
1.14 "Support Services" means maintenance and support services for users of Elastic Cloud, as more fully described in the Support Services Policy.
1.15 "Support Services Policy" means Elastic's support services policy for the Elastic Cloud Gold and Elastic Cloud Platinum Subscription Levels located at https://www.elastic.co/legal/support_policy/cloud_premium. Elastic reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Elastic agrees not to materially diminish the level of Support Services during the Subscription Term. The effective date of each version of the 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.
2 SERVICES GENERALLY; AGREEMENT SCOPE
(a) Registration and Subscription Levels. In order to use Elastic Cloud, Customer must first register for one or more account(s) (each an "Account"). Each Account may be used in connection with one or more Subscriptions, provided that all Subscriptions within an individual Account must be at the same Subscription Level. Customer may not register multiple Accounts to simulate or act as a single Account, or otherwise access Elastic Cloud in a manner intended to avoid incurring fees, including, without limitation, by using more than one Account to service the same Project. Communications from Elastic to Customer regarding Elastic Cloud will be sent to the email address registered with each of Customer's Accounts.
(b) Customer Security Obligations. Customer is responsible for maintaining the security of the login credentials, security-keys and the correct configuration of access control lists for Customer's Accounts. Customer is fully responsible for all activities that occur under its Accounts. Customer agrees to immediately notify Elastic of any unauthorized use of its Accounts, use of an Account in violation of this Agreement or any other breaches of security related to its Elastic Cloud Account(s), of which Customer becomes aware.
(a) Subscription Orders. Orders for Subscriptions may be placed by Customer through the execution of Order Forms with Elastic, setting forth the (i) Elastic Cloud Subscription Level, (ii) Subscription Term, (iii) Resource quantities and (iv) applicable fees. Each executed Order Form is incorporated by reference into, and shall be governed by the terms and conditions of, this Agreement.
(b) Adding Resources to Subscriptions. Customer may add Resources to an existing Subscription via the Elastic Cloud user interface, on either a temporary basis, or for the remainder of the applicable Subscription Term. Temporary increases in Resources are priced at the then-current list price. Increases in Resources for the remainder of an applicable Subscription Term are provided at the price stated on the Order Form under which the applicable Subscription was purchased. Fees applicable to increased Resources will be invoiced in accordance with Section 5 below.
(c) Upgrading Subscription Levels. Customer may upgrade the Subscription Level of existing Subscriptions through execution of a new Order Form, provided that where Customer upgrades the Subscription Level of an existing Subscription, all other Subscriptions in the same Account, if any, will automatically be upgraded to the same Subscription Level. Fees applicable to upgraded Subscription Levels will be invoiced in accordance with Section 5 below.
(a) Generally. The parties agree that their respective Affiliates may also conduct business under this Agreement by entering into Order Forms, subject to such additional and/or alternative terms and conditions to those contained in this Agreement as may be mutually agreed upon in order to comply with local country law or business practices, and which are set forth in a country specific participation agreement, executed by the applicable parties which otherwise incorporates the terms and conditions of this Agreement ("Participation Agreement"). Accordingly, where Affiliates of the parties conduct business hereunder, references to Customer shall include any applicable Customer Affiliate, and references to Elastic shall include any applicable Elastic Affiliate. The parties agree that where either of them or one of their Affiliates enters into an Order Form with an Affiliate of the other party, that such Affiliate shall be solely responsible for performing all of its obligations under this Agreement in connection with such Order Form.
(b) Elastic Cloud Standard. Where Customer purchases a Subscription to Elastic Cloud Standard, the applicable Order Form will establish a contract between Customer and Elastic Affiliate, Elasticsearch AS (which owns and operates Elastic Cloud Standard), which incorporates, and is subject to, all of the terms and conditions of this Agreement. Execution of such Order Form by authorized representatives of Customer and Elasticsearch AS will indicate the intention and consent of Elasticsearch AS and Customer to enter into such a contract.
2.5 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 Elastic Cloud and any 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, Section 5 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.
2.6 Compliance with Law. Customer shall use Elastic Cloud in compliance with all applicable laws, including export control and data privacy laws.
2.7 No Other License; No Assignment of Rights. This Agreement grants Customer a limited right to use Elastic Cloud. Nothing in this Agreement shall be understood to transfer from Elastic to Customer any intellectual property rights, and all right, title and interest in and to Elastic Cloud and Support Services will remain (as between the parties) solely with Elastic or its third party suppliers. "Elastic" and Elastic Cloud logos, and all other trademarks, service marks, graphics and logos used in connection with Elastic Cloud and the Support Services are trademarks or registered trademarks of Elastic or Elastic's third party suppliers. Other trademarks, service marks, graphics and logos used in connection with the Elastic Cloud may be the trademarks of other third parties. Elastic grants to Customer no right or license to reproduce, or otherwise use any Elastic or third-party trademarks under this Agreement.
3 PROVISION OF ELASTIC CLOUD AND SUPPORT SERVICES
3.1 Elastic Cloud Generally. Elastic will provide to Customer, and Customer is hereby granted the right to use, the Elastic Cloud at the applicable Subscription Level during each applicable Subscription Term. Elastic may from time to time modify the Eligible Features and Functions of Elastic Cloud during the Subscription Term, but shall not materially reduce the functionality thereof.
3.2 Provision of Support Services. Where Customer purchases Elastic Cloud Gold or Elastic Cloud Platinum, during the applicable Subscription Term, Elastic will provide Customer with Support Services in accordance with the Support Services Policy and the Elastic Subscription Level purchased by Customer. Support Services will only be delivered remotely, electronically, through the Internet, and when applicable, depending on the particular Support Services purchased, via telephone.
3.3 Third Party Contractors. At Customer's written request to Elastic's support organization (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 any software-as- a-service that competes with Elastic Cloud, (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.
3.4 Restrictions. Support Services are provided to Customer solely for Customer's internal use (which includes use by Customer Affiliates, and, subject to Section 3.3, Contractors), and are subject to the quantitative limitations set forth on the applicable Order Form, and applicable limitations on the number of support contacts and incidents, if any, set forth in the Support Services Policy. In addition, Customer agrees to not:
(a) use the Support Services to supply any consulting, support or training services regarding Elastic Cloud to any third party other than Customer Affiliates; or
(b) use Support Services for one Subscription to obtain support for another Subscription with a lower Subscription Level, or to obtain support for any use by Customer of Elastic software that is offered as a service by any third party.
Customer agrees that any knowing failure to comply with the terms of this Section 3.4 will be deemed a material breach of this Agreement. In the event of any failure to comply this Section 3.4, Elastic may, without prejudice to any other remedies available hereunder, at law or in equity, suspend 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 INFRINGEMENT CLAIMS
4.1 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 Elastic's technology used to provide Elastic Cloud (excluding any open source software) or the Support Services infringed such party's patent registered as of the Effective Date, or any copyright or trademark of such party, enforceable in the jurisdiction of Customer's use of Elastic Cloud or the 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.
4.2 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 Elastic Cloud or Support Services in a country that is not a contracting state to the Patent Cooperation Treaty; (ii) a modification of Elastic Cloud that is not performed by or on behalf of Elastic; (iii) the combination, operation, or use of Elastic Cloud 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; (iv) use of Elastic Cloud other than in accordance with the terms and conditions of this Agreement; (v) damages attributable to the value of the use of any non-Elastic product or service or (vi) any third party open source software and/or third party computing infrastructure products or services.
4.3 Certain Remedies. If Elastic Cloud 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 Elastic Cloud or the Support Services (as applicable); (ii) modify Elastic Cloud or the Support Services (as applicable) 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 (as applicable) 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.
4.4 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 4 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 ELASTIC CLOUD AND/OR THE SUPPORT SERVICES.
4.5 Obligations of Customer. Except with respect to a matter addressed under Section 4.1 above, Customer will, at its expense (i) defend, or at its option settle, but subject to Elastic's prior written consent, not to be unreasonably withheld, a claim brought against Elastic, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to Customer's use of Elastic Cloud, including but not limited to Customer's breach by Customer of Section 2.6 and/or Section 8.1 of this Agreement, and (ii) indemnify Elastic against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.
4.6 Conditions. The obligations of a party to indemnify, defend and hold harmless, in this Section 4 (the "Indemnifying Party") are conditioned upon the party receiving such indemnity (the "Indemnified Party") (i) notifying the Indemnifying Party promptly of any threatened or pending claim, provided that failure to provide such notice will only relieve the Indemnifying Party of its obligations under this Section 4 to the extent its ability to defend or settle an applicable claim is prejudiced by such failure to provide notice, (ii) giving the Indemnifying Party, at the Indemnifying Party's expense, reasonable assistance and information requested by the Indemnifying Party in connection with the defense and/or settlement of the claim and (iii) tendering to the Indemnifying Party sole control over the defense and settlement of the claim. The Indemnified Party's counsel will have the right to participate in the defense of the claim, at the Indemnified Party's expense. The Indemnified Party will not, without the prior written consent of the Indemnifying Party, make any admission or prejudicial statement, or settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim.
5 FEES AND PAYMENT; TAXES
5.1 Fees and Payment. Unless otherwise set forth on the Order Form, Customer agrees to pay Elastic the fees stated on an Order Form within thirty (30) days of receipt of an applicable invoice. Elastic will invoice Customer for any additional amounts owed based on usage in excess of the purchased Resources, at its then-current rates, monthly in arrears. Elastic reserves the right to change such fees upon thirty (30) days' notice. The invoice will be paid in the currency set forth on the Order Form. Except as otherwise expressly provided in this Agreement and to the extent permitted by applicable law, 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. Payments will be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Elastic may charge interest on the unpaid balance at 2% per annum above the then-current overnight bank bill swap rate published by the Reserve Bank of Australia.
5.2 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 any 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. 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 Elastic Cloud or the Support Services 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. If for any reason a supply made by Elastic under or in connection with this agreement is a Taxable Supply for GST purposes, then at or before the time the consideration for the supply is payable, Customer must pay Elastic an amount equal to the GST for the supply (in addition to the consideration otherwise payable under this agreement for that supply), and Elastic must give Customer a Tax Invoice for the supply. For the purpose of this section 6.2A, GST means the goods and service tax under the Good and Services Tax Act 1999 (Cth) and capitalised terms have the meaning given in that Act.
5.3 Disputes. Customer may dispute amounts billed by providing notice within ten (10) days of being billed for such amounts, or Customer will be deemed to have waived its right to dispute such amounts.
5.4 Payment Information. Customer acknowledges and agrees that any credit card and related billing and payment information provided to Elastic may be shared by Elastic with companies who work on Elastic's behalf, such as payment processors and/or credit agencies, but solely for the purposes of checking credit, effecting payment to Elastic and servicing Customer's Account. Elastic shall not be liable for any use or disclosure of such information by such third parties.
6 CONFIDENTIAL INFORMATION
6.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, 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 Elastic Cloud, 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.
6.2 Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter keep in trust and confidence all Confidential Information of the other party 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.
6.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party's breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party's possession without restriction 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.
6.4 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.
6.5 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.
7.2 Definition of Data. In connection with Customer's use of Elastic Cloud, Customer and/or its end users may send information, content and data (collectively, "Data") to, or retrieve Data from, Elastic Cloud.
7.3 Customer Responsibility for Data. Customer is fully responsible for the content, accuracy and completeness of such Data, and any loss, liabilities or damages resulting from the Data, regardless of whether the Data consists of, including but not limited to, text, graphics, audio, video, or computer software. Customer represents and warrants to Elastic that: (i) Customer owns or has the necessary licenses to provide the Data to Elastic, and the provision of the Data to, and use of the Data by, Elastic as contemplated herein will not infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; (ii) the Data does not contain any viruses, worms, malware, Trojan horses or other harmful or destructive code; (iii) the Data is not spam, is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing); and (iv) Customer has, in the case of Data that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the Data, whether requested to do so by Elastic or otherwise. Customer is solely responsible for backing up or otherwise making duplicates of Data.
7.4 Data Processing. To the extent Customer communicates any Data relating to an identified or identifiable individual ("Personal Data") to Elastic, or Elastic obtains any Personal Data from Customer, Elastic agrees that it (and/or its contractors) will not knowingly collect, access, use, store, disclose, transfer or otherwise process (collectively, "Process" or "Processing") any such Personal Data except (i) for the purposes of this Agreement, including without limitation, to implement and deliver Elastic Cloud and its features and associated services, provide customer support, and help Customer prevent or address service or technical problems; (ii) as expressly permitted by Customer in this Agreement or otherwise; or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data Processed is by Customer (including, without limitation, by disclosing the Personal Data to Elastic) in connection with Customer's use of or access to Elastic Cloud and its features and associated services. For purposes of this Agreement, Customer is a "data controller" and Elastic is a "data processor" with respect to Personal Data, as these terms are defined in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and any replacement directive or regulation imposing equivalent obligations.
7.5 License to Elastic. By submitting Data to Elastic, Customer hereby grants Elastic a sublicensable. worldwide, royalty- free, and non-exclusive right to reproduce, modify, adapt and publish the Data solely for the purpose of enabling Elastic to provide Customer with Elastic Cloud. If Customer wishes to delete Data from Customer's Account, Elastic will use reasonable efforts to remove it, but Customer acknowledges that backups, caching or references to the Data may not be made immediately unavailable.
7.6 Data Retrieval. Customer is solely responsible for deleting or retrieving Data from Elastic Cloud prior to termination of Customer's Account for any reason. If Elastic terminates Customer's Account, Elastic will provide Customer a reasonable opportunity to retrieve Customer's Data from Elastic Cloud, if requested in writing. Such a request must be sent by email to Elastic within seven (7) days after Customer receives notice regarding the termination. In any event, Data will be deleted from Elastic Cloud no earlier than fourteen (14) days after the termination notice regarding Customer Account has been sent to Customer. Notwithstanding the foregoing, Elastic may delete Data or refuse to provide access there to, at any time, if doing so would present a material risk of Elastic or if doing is in accordance with Elastic's Digital Millennium Copyright Act policy .
7.7 Third Party Content. Furthermore, while Elastic reserves the right, it has no obligation to monitor all of the content, data or information posted on Elastic Cloud by third parties, and is not responsible for any such content, data or information. Elastic does not represent or imply that it endorses any such content, data or information, or that such content, data or information is accurate, useful or non-harmful. Customer must take all precautions necessary to protect itself, and its computer systems from viruses, worms, Trojan horses, and other harmful or destructive materials. Elastic disclaims any responsibility for any harm resulting from the use Elastic Cloud, or from any downloading material posted there.
8 RESTRICTIONS ON USE
8.1 Restrictions. Customer shall not: (i) use Elastic Cloud to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs; (ii) use Elastic Cloud to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party; (iii) access or use Elastic Cloud to compete against Elastic; (iv) access or use Elastic Cloud for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; (v) make access to Elastic Cloud through its account available to any third party; (vi) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, Elastic Cloud; (vii) interfere with or disrupt the integrity or performance of Elastic Cloud or third-party data contained therein; (viii) attempt to gain unauthorized access to Elastic Cloud or any associated systems or networks; (ix) modify, make derivative works of, disassemble, decompile or reverse engineer Elastic Cloud or any component thereof; or (x) use Elastic Cloud in furtherance of the violation of the rights of others.
8.2 Suspension. If Elastic believes, in its sole discretion, that Customer has violated or attempted to violate this Agreement, or that Customer's use of Elastic Cloud presents a material security risk, Elastic may suspend access to Elastic Cloud until the violation has been corrected. Elastic will use reasonable efforts to provide Customer with advance written notice prior to implementing such suspension and will work with Customer to resolve the underlying issue.
8.3 Overuse. If Customer's use of Elastic Cloud exceeds the average usage in such a manner that it causes problems for other customers, as determined solely by Elastic, Elastic reserves the right to throttle or pause Customer's use of Elastic Cloud, with or without prior notice. Customer shall contact Elastic if Customer desires to assess performance by benchmarking for more than five minutes.
9 LIMITED WARRANTY, WARRANTY DISCLAIMER
9.1 Warranty. Elastic warrants that during each Subscription Term it will perform applicable Support Services and provide Elastic Cloud in a professional, workmanlike manner, consistent with generally accepted industry practice, and in substantial accordance with the Support Services Policy (if applicable). In the event of a breach of the foregoing warranty, Elastic's sole obligation, and Customer's exclusive remedy, shall be for Elastic to re-perform the applicable Support Services or correct any non-conformity in Elastic Cloud, as applicable.
9.2 Warranty Disclaimer. NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT CUSTOMER'S NON-EXCLUDABLE RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH). EXCEPT AS SET FORTH IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUPPORT SERVICES AND ELASTIC CLOUD ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND ELASTIC MAKES NO OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SUPPORT SERVICES, ELASTIC CLOUD OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS SET OUT IN THIS AGREEMENT, ELASTIC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SUPPORT SERVICES AND ELASTIC CLOUD. ELASTIC DOES NOT GUARANTEE THE ACCURACY OR RELIABILITY OF ANY RESULTS GENERATED BY ELASTIC CLOUD AND CUSTOMER RELIES ON SUCH PRODUCT AT ITS OWN RISK.
10 LIMITATION OF LIABILITY
10.1Excluded Damages. IN NO EVENT SHALL CUSTOMER OR ELASTIC BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Damages Cap. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE BY CUSTOMER UNDER AN ORDER FORM, A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6, AND WITH RESPECT TO ELASTIC'S OBLIGATIONS UNDER SECTION 4.1(i), IN NO EVENT SHALL EITHER PARTY'S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO ELASTIC UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE 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 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.
10.4 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 10.1, 10.2 AND 10.3 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.
11 TERM AND TERMINATION
11.1 Subscription Term. Unless otherwise set forth on the Order Form, the initial term of Customer's Subscription under the Order Form will be one (1) year. Thereafter, the term of Customer's Subscription shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the Subscription at least thirty (30) days prior to the expiration of the then-current term. The initial Subscription term, plus any subsequent renewal Subscription term, 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. Each party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a 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.
11.3 Survival. Upon the expiration or termination of this Agreement, (i) Customer shall have no further rights to receive the Support Services or access Elastic Cloud; and (ii) any payment obligations accrued under Section 5, as well as the provisions of Sections 4, 6, 7.5, 7.6, 9, 10, 11.3 and 12 of this Agreement will survive such expiration or termination. Any outstanding balance becomes immediately due and payable upon termination of Customer's use of Elastic Cloud for any reason.
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; Subcontracting. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially of a the assigning party's assets. Any assignment in violation of this Section 12.1 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns. Nothing will restrict Elastic from subcontracting its obligations under this Agreement to any third parties.
12.3 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.
12.4 Customer Identification. Customer consents to Elastic's identification of Customer as a user of Elastic Cloud 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 and services 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. This Agreement will be governed by and construed in accordance with the laws of the New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts competent to hear appeals from those courts. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. A breach or threatened breach, by either party of Section 6 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.
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 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 an Order Form. Notices to Elastic may also be sent to firstname.lastname@example.org. 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 6 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 Elastic Cloud and/or the Support Services. 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.
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