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These terms and conditions apply to the provision by Elasticsearch Inc, a Delaware Corporation, with its principal place of business located at 800 West El Camino Real, Suite 350, Mountain View, CA 94040 ("Elasticsearch"), of services to any person or entity ("Customer") which has purchased Elasticsearch training services described herein ("Services") by registering on www.elastic.co, or pursuant to an Elasticsearch order form executed by Customer ("Order Form"). No Order Form shall be deemed binding upon Elasticsearch unless accepted by Elasticsearch, as indicated by Elasticsearch executing such Order Form (such executed and accepted Order Form together with these terms and conditions, this "Agreement").
- 1. SERVICES. Customer may purchase Services from Elasticsearch by completing an Order Form that is governed by the terms and conditions of this Agreement. Elasticsearch agrees to use commercially reasonable efforts to perform such Services in accordance with this Agreement. Services are only for Customer's internal use and Customer may not use the Services to supply any consulting, support or training services to any third party. The Services shall be performed by persons ("Trainers") who in the reasonable judgment of Elasticsearch are appropriately qualified to perform such Services. All Services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101.
- 2. PAYMENT AND TAXES. Customer agrees to pay Elasticsearch the fees stated on the Order Form. Customer will pay Elasticsearch all sales, use, and excise taxes levied upon the delivery or use of the taxable Services described in this Agreement, unless Customer provides Elasticsearch a valid state sales/use/excise tax exemption certificate or Direct Pay Permit. Customer will pay all value added or other tax or duty, and all government permit, withholding or license fees, and custom or similar fees, levied upon the delivery or use of Services described in this Agreement. Unless otherwise specified on an Order Form, all invoices will be paid in Euros, or GBP or US Dollars as set forth on the applicable Order Form and are due upon receipt. Payments will be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Elasticsearch may charge interest at one percent (1%) per month on the unpaid balance, except that for Customers who are federal government entities, payment shall be made in accordance with the Prompt Payment Act (31 U.S.C. 3901) and applicable prompt payment regulations.
- 3. CUSTOMER'S OBLIGATIONS. Customer shall ensure that all persons booked to receive training: (i) are appropriately qualified to participate; (ii) arrive on time for training and in any event not later than twenty minutes after its scheduled start time; (iii) do not conduct themselves in an anti-social manner that could reasonably be considered contrary to Customer's applicable employment rules and policies. Trainers shall have the right in their reasonable discretion to exclude from a training session any person in breach of subsections (i)-(iii) of this Section 3.
- 4. OWNERSHIP; CONFIDENTIAL INFORMATION. Customer acknowledges that it may acquire proprietary information and materials about the business, products, services and programming techniques of Elasticsearch and agrees that all such information and materials acquired are the confidential information of Elasticsearch ("Confidential Information"). Customer agrees to protect and not to disclose or use the Confidential Information except as expressly permitted under the Agreement. Elasticsearch training courses and training materials ("Materials") and all worldwide intellectual property rights therein, as the same may be amended and/or extended, including the copyright, are wholly owned solely by Elasticsearch, who shall retain all right title and interest in and to all Materials. Customer shall be entitled to keep and use all Materials provided by Elasticsearch to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Elasticsearch. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archive purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials will be limited to use by the specific persons to whom the services are provided. All Elasticsearch trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Elasticsearch trademarks without Elasticsearch's express written authorization.
- 5. LIMITED WARRANTY, WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
- 5.1 Elasticsearch warrants that it will perform the Services in a workmanlike manner consistent with generally accepted industry practice. Except for the foregoing LIMITED WARRANTY, THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- 5.2 IN NO EVENT WILL ELASTICSEARCH BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFIT, LOSS OF DATA, LOSS OF, BUSINESS INTERRUPTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE.
- 6. THIRD PARTY SOFTWARE. Customer acknowledges that in order for Elasticsearch to provide the Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Elasticsearch ("Third Party Products"). Elasticsearch may provide Customer with links and instructions for obtaining Third Party Products but it is Customer's responsibility to properly license and install any required Third Party Products from the relevant third party providers. Elasticsearch shall have no liability with respect to any Third Party Products. In the event of a failure by Customer to timely provide Third Party Products as required, Elasticsearch may treat the applicable Order Form as having been cancelled by Customer.
- 7. TERM. Unless earlier terminated in accordance with this Section 7, this Agreement will remain in effect until both parties' obligations are fully discharged. Either party may terminate this Agreement upon written notice to the other party in the event that such other party fails to cure a material breach of this Agreement within a reasonable period of receiving written notice of such breach. Elasticsearch may terminate this Agreement immediately upon written notice to Customer in the event that Customer fails to timely pay any amounts due hereunder. Upon the expiration or termination of this Agreement, Sections 2, 4, 5, 6, 7, 8, 9 and 10 will survive. If Customer wishes to reschedule any Services it must provide Elasticsearch with not less than fourteen (14) days written notice thereof and Customer will pay the applicable fees set forth in an Order Form, provided that subject to the foregoing, Elasticsearch shall work together with Customer to reschedule the Services. If Elasticsearch wishes to reschedule any Services due to unforeseen instructor sickness or personal emergency it may do so on reasonable notice which may be immediate where necessitated by circumstances.
- 8. PERSONAL DATA. The parties shall comply with all obligations under applicable law as regards the storage, processing, transmission and protection of personal data, and shall not do nor permit to be done on their own behalves anything which breaches the foregoing obligation.
- 9. 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 Elasticsearch's employees or contract staff ("Restricted Persons") with a view to: (i) Offering such Restricted Persons, employment; or (ii) Soliciting services from them on their own account; or (iii) Encouraging them to provide their services to a third party rather than Elasticsearch; or (iv) Offering to them the opportunity to perform services colourably similar to the Services.
- 10. GENERAL. Nothing contained in this Agreement shall be construed to make either Party an agent, partner, joint venturer, or representative of the other for any purpose. Elasticsearch may sub-contract the performance of its obligations under this Agreement. The Parties shall not assign any of their rights and/or obligations under this Agreement in whole or in part to any third party other than an acquiring, acquired or merging entity, without the express written consent of the other. Except as expressly stated herein to the contrary, all notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered or transmitted to the intended recipient's address as either Party may notify to the other for this purpose from time to time in writing. Any notice may be sent by email and shall be treated as having been served: on delivery if delivered by hand; four working days after posting if sent by pre-paid registered mail; two working days after dispatch if sent by courier; and on confirmation of transmission if sent by facsimile or email. This Agreement shall be binding upon and inure to the benefit of the Parties' permitted successors and assigns. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder, which such terms are hereby rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. 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 effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Elasticsearch and Customer and do not create any right in favor of any third party. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California without reference to its conflict of laws principles, except that if the Customer is an entity of the Federal government, this Agreement will be governed by the federal laws of contract. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of a court of competent jurisdiction located in the Northern District of California or a state court located in San Francisco, California and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue, except that with respect to a Customer that is a Federal government entity, in which case any litigation shall be in such court or forum and as required by federal law and regulation.
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