Vendor Software Subscription Agreement

NOT FOR EDITING OR NEGOTIATION

Version Effective Date: May 2024

This Vendor Software Subscription Agreement, 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.

1. 1 DEFINITIONS
   Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
   1. 1.1 "Addendum" means an addendum to this Agreement which sets forth additional terms and conditions that are specific to the Products or Services covered by such addendum.
   2. 1.2 "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.
   3. 1.3 "Infringement Claim" means a claim brought against Vendor by an unaffiliated third party alleging that Vendor's use in accordance with this Agreement and each applicable Addendum hereto during the applicable Subscription Term of Products and/or Services infringed such party's intellectual property.
   4. 1.4 "Product" means Software or a Cloud Service, as applicable.
   5. 1.5 "Software" means Vendor software that is licensed for use on Elastic's premises or in Elastic's public cloud account, including all updates thereto and new releases thereof, that are made generally available by Vendor to its customers during the applicable Term.
   6. 1.6 "Support Services" means maintenance and support services for an applicable Product, if any, that are included in a Subscription, as more fully described in the applicable Support Services Policy.
2. 2 AGREEMENT SCOPE
   1. 2.1 Affiliates. The parties agree that their respective Affiliates may also conduct business under this Agreement by entering into ordering documents such as Statements of Work (SOW) or Ordering Documents ("OF"), which in some cases may be subject to such additional and/or alternative terms and conditions to those contained in this Agreement as may be mutually agreed in such Ordering Document executed by the applicable parties which incorporates the terms and conditions of this Agreement, as amended by the terms of the Ordering Document.
   2. 2.2 Services. During the term of this Agreement, Vendor will provide Elastic access to its Software-as-a-Service (the "Services") as set forth in each Ordering Documents (each, an "OF"), executed by the parties and as described on a Ordering Documents referencing this Agreement. Vendor represents that Vendor is duly licensed (as applicable) and has the qualifications, the experience and the ability to properly provide the Services. Vendor further represents and warrants that the Services shall be performed in strict accordance with the requirements of this Agreement, applicable professional standards and all applicable laws, including all applicable data protection laws. Vendor shall use Vendor's best efforts to perform the Services such that the results materially conform with the specifications as confirmed by the use of the SaaS in the applicable Ordering Documents. If Vendor intends to modify the Services in such a way that it reasonably will or may disrupt provision or availability of the Services, Vendor shall provide Elastic at least sixty (60) days notice prior to such modification where reasonably possible. Notwithstanding the above Vendor shall not make modifications that materially reduce the Services without prior written consent of Elastic. If such modification lead to deprecation of any material functionality, such should be cured within 30 days, failing which Elastic has the right to terminate the Services under Sec.11.3.1 and receive a refund.
   3. 2.3 Ownership of the Service. The Service is the property of the Vendor, and is protected by copyright, patent, trade secret and other intellectual property laws. Vendor and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Elastic's right to use the service is limited to the rights granted in this Agreement and the applicable Ordering Documents. All rights not expressly granted to Elastic are reserved and retained by the Vendor.
   4. 2.4 Subcontractors. Vendor shall not engage any subcontractors to provide the Services unless approved in writing by Elastic prior to engaging such subcontractor. Vendor shall remain fully responsible and liable for any and all Services under this Agreement, including any and all Services of subcontractors.
3. 3 GRANTS OF RIGHTS, CONTINUITY & SUPPORT
   1. 3.1 Grants of Rights. Subject to the terms and conditions of this Agreement, Vendor hereby grants to Elastic the non-exclusive, non-transferable, worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW.
   2. 3.2 Business Continuity & Disaster Recovery. Vendor will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure or critical business processes or systems affecting the Service.
   3. 3.3 Support & Service Level Agreement. Vendor will provide technical support for the Services in accordance with the SLA to this Agreement (Support and Service Level Agreement) as long as Elastic is entitled to receive support under the applicable Order Form (s) and this Agreement.
4. 4 PAYMENT AND TAXES
   1. 4.1 Payment. Vendor will invoice Elastic for the fees due under each Order Form or otherwise under this Agreement, and Elastic will pay such fees within sixty (60) days after receipt of a correct invoice, shared to ap@elastic.co. All invoices will be paid in the currency set forth on the applicable ordering document. Payments will be made without the right of set-off or chargeback. Vendor shall include the relevant Purchase Order number on all invoices it submits to Elastic. Failure to include such Purchase Order number on any invoice may delay payment by Elastic.
   2. 4.2 Taxes. All fees stated on an Ordering Document are exclusive of any applicable sales, use, value added and excise taxes levied upon the delivery or use of the taxable components, if any, under this Agreement (collectively, "Taxes").
5. 5 ARTIFICIAL INTELLIGENCE
   Vendor agrees that it will not employ, use, or otherwise implement any artificial intelligence ("Artificial Intelligence" or "AI" or "Generative AI") in conjunction with this Agreement or providing the Services without express prior written consent of Elastic. Additionally, Vendor will not allow any AI or GAI to "learn" from any Elastic data or other information sets without the express prior written consent of Elastic.
6. 6 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. Vendor acknowledge that the Vendor 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 applicable 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. Vendor acknowledge that remote access to a Vendor 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.
7. 7 CONFIDENTIAL INFORMATION
   1. 7.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature ("Confidential Information"). Confidential Information includes materials and all communications concerning Elastic's or Vendor's business and marketing strategies, including but not limited to employee and Vendor lists, Vendor 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 Products, anything provided by either party to the other in connection with the Products and/or 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.
   2. 7.2 Non-use and Non-disclosure. The parties shall at all times, both during the Term and thereafter keep in trust and confidence all Confidential Information of the other party using commercially reasonable care (but in no event less than the same degree of care that the receiving party uses to protect its own Confidential Information) and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than 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. 7.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party's breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party's possession without restriction as evidenced by appropriate documentation; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
   4. 7.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, referral partners involved in an applicable transaction, accountants, attorneys and Affiliates pursuant to the terms of a non-disclosure or confidentiality agreement. If Vendor is using a third party provider to host a Product, then such provider may also receive, subject to a confidentiality obligation, information related to the terms of this Agreement or Vendor's usage of the applicable Product.
   5. 7.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may disclose the other party's Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: (i) unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party's cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party's Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
8. 8 WARRANTIES AND DISCLAIMER OF WARRANTIES
   1. 8.1 Limited Support Services and Services Performance Warranty. Vendor warrants that it will perform the Support Services and/or Services, as applicable, in a professional, workmanlike manner, consistent with generally accepted industry practice, and, in the case of Support Services, in accordance with any applicable Support Services Policy.
   2. 8.2 Limited Product Performance Warranty. Vendor warrants that during the applicable Term, the Products or Services, in the form provided by Vendor under the Agreement, will perform in all material respects in accordance with the Product specifications. In the event of a breach of the foregoing warranty, Vendor shall (i) correct any failure(s) of the Products to perform in all material respects in accordance with the Product specifications or (ii) if Vendor is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Vendor may elect to terminate the associated Agreement, and Vendor will promptly refund to Elastic any pre-paid, unused fees paid by Elastic to Vendor for such Products or Services.
   3. 8.3 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTIONS 5.1 and 5.2 ABOVE OR IN AN APPLICABLE ADDENDUM, THE PRODUCTS, SERVICES, AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND VENDOR MAKES NO ADDITIONAL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, SERVICES AND/OR SUPPORT SERVICES OR ANY MATERIALS FURNISHED OR PROVIDED TO VENDOR UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VENDOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS, SERVICES AND SUPPORT SERVICES AND ANY MATERIALS FURNISHED OR PROVIDED TO ELASTIC UNDER THIS AGREEMENT.
   4. 8.4 High-Risk Activities Prohibition. VENDOR SHALL NOT USE THE PRODUCTS, SERVICES, SUPPORT SERVICES OR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT IN HIGH-RISK ACTIVITIES, WHERE THEIR USE OR FAILURE COULD REASONABLY BE EXPECTED TO LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL OR PROPERTY DAMAGE (SUCH AS THE CREATION OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, AUTONOMOUS VEHICLES, WEAPON SYSTEMS, OR LIFE SUPPORT SYSTEMS).
9. 9 INFRINGEMENT CLAIMS
   1. 9.1 Vendor Obligations. Vendor will, at its expense, defend or settle any Infringement Claim and will indemnify Vendor against and pay (i) any settlement of such Infringement Claim consented to by Elastic or (ii) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. Elastic shall not enter into any settlement agreement with respect to an Infringement Claim if such settlement agreement requires any admission of liability or wrongdoing on the part of Vendor or imposes on Vendor any obligation other than the obligation to cease using the Products, Services or Support Services that are subject to the Infringement Claim, unless Vendor has first consented in writing to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations.
   2. 9.2 Certain Remedies. If the Products and/or Services are, or in Vendor's reasonable opinion are likely to become, the subject of an Infringement Claim and/or an injunction as the result of an Infringement Claim, Vendor may, at its expense and option: (i) obtain the right for Elastic to continue to use the applicable Products and/or Services; (ii) modify the applicable Products and/or Services to make it/them non-infringing, but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are, in Vendor's reasonable judgement, commercially reasonable options, terminate Elastic's right to use the applicable Products and/or Services, and terminate all affected Ordering Documents and promptly refund to Elastic any unused pre-paid fees paid by Elastic to Vendor under such terminated Ordering Documents.
   3. 9.3 Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ELASTIC, AND THE EXCLUSIVE REMEDY OF VENDOR, WITH RESPECT TO ANY INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCTS AND/OR SERVICES.
10. 10 LIMITATION OF LIABILITY
    1. 10.1 Excluded Damages. IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. 10.2 Damages Cap. EXCEPT WITH RESPECT TO (I) A PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 4 (II) VENDOR'S OBLIGATIONS UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY'S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDERING DOCUMENT EXCEED THE AMOUNT PAID OR PAYABLE BY ELATISC TO VENDOR UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, AND/OR SERVICES DELIVERED AND/OR MADE AVAILABLE TO ELASTIC UNDER SUCH ORDERING DOCUMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.
11. 11 TERM AND TERMINATION
    1. 11.1 Subscription Term. Unless earlier terminated in accordance with Section 11.3 below, each Subscription will commence and expire in accordance with the first start date and last end date set forth on the applicable Ordering Document (the entire duration of such Ordering Document and the term of any renewal thereof).
    2. 11.2 Agreement Term. This Agreement will commence on the Effective Date and continue for a period as set forth in an applicable Ordering Document, unless earlier terminated in accordance with Section 11.3.2 below. The initial term of this Agreement, shall be the "Term" of this Agreement. For the clarity of Section 11.2 any reference to auto-renewal clauses in an Ordering Document is deemed null and void.
    3. 11.3 Termination.
       1. 11.3.1 Ordering Documents. Each party may terminate an Ordering Document, upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement with respect to such Subscription and/or Services, and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Upon the termination or expiration of an Ordering Document, the rights and obligations of the parties with respect thereto will, subject to Section 10.4 below, cease, provided that termination under this Section 11.3.1 will not result in termination of any other Ordering Documents.
       2. 11.3.2 Agreement. Either party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement with respect to any active Ordering Documents hereunder and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. For the avoidance of doubt, termination of this Agreement under this Section 11.3.2 will result in the termination of all Ordering Documents.
    4. 11.4 Survival. Upon the expiration or termination of an Ordering Document or this Agreement, (i) Vendor shall have no further rights under any affected Ordering Document or this Agreement as applicable; and (ii) any payment obligations accrued under Section 3, as well as the provisions of Sections 1, 4, 8, 9, 10, 11.4 and 15 of this Agreement will survive such expiration or termination.
12. 12 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.
13. 13 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.
14. 14 In this Section, the terms "controller", "processor" and "personal data" will bear the meanings given to them in General Data Protection Regulation (EU Data Protection Law). To the extent Elastic's personal data is transmitted from the European Economic Area (the "EEA") to a jurisdiction outside of the EEA, the Standard Contractual Clauses shall apply to such transfers.
15. 15 GENERAL
    1. 15.1 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.
    2. 15.2 Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party's assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
    3. 15.3 Attorneys' Fees. If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement, 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.
    4. 15.4 California Consumer Privacy Act (CCPA). Vendor is a "Service Provider" as such term is defined under §1798.140(v) of the CCPA. As such, Vendor shall not retain, use or disclose any personal information (as defined in the CCPA) received from Elastic during the Term of this Agreement for any purpose other than the specific purpose of providing the Products and Services specified in this Agreement or for such other business purpose as is specified in this Agreement.
    5. 15.5 Publicity. Unless Vendor has first obtained Elastics prior written consent, Vendor shall not identify Elastic as a customer nor use Elastic's name, logo, or other IP in any marketing or other displayed form.
    6. 15.6 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.
    7. 15.7 Transition Assistance. Reasonably promptly after either party's notice of termination, Consultant shall assist Elastic with transition to an alternate Consultant or to in-house operations pursuant to Consultant then-standard transition policies; provided (a) Consultant has no good faith basis to believe that Elastic is in breach of this Agreement and (b) Elastic pays Consultant standard fees for such services. Consultant has no obligation to provide such assistance or to retain any copies of Elastic Data after termination of this Agreement.
    8. 15.8 Governing Law, Jurisdiction and Venue.
       1. 15.8.1 Vendors in California. If Vendor is located in California (as determined by the Vendor address on the applicable Ordering Document), 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.
       2. 15.8.2 Vendors Outside of California. If Vendor is located anywhere other than California (as determined by the Vendor address on the applicable Ordering Document), 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.
       3. 15.8.3 Vendors Outside of the United States. If Vendor is located anywhere other than the United States (as determined by the Vendor address on the applicable Ordering Document), this Agreement will be governed by the laws of Netherlands, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in the courts of Netherlands.
       4. 15.8.4 All Vendors. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of the applicable courts set forth in Sections 15.8.1 or 15.8..2 above, based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
       5. 15.8.5 Equitable Relief. A breach or threatened breach, by either party of Section 4 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.
    9. 15.9 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.
    10. 15.10 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 Ordering Document. Notices to Elastic may also be sent to legal@elastic.co. 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.
    11. 15.11 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. 15.12 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.
    13. 15.13 Entire Agreement; Amendment. This Agreement, together with any Ordering Documents executed by the parties, and the Support Services Policy, each of which is hereby incorporated herein by this reference, constitutes the entire agreement between the parties concerning the subject matter hereof, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. In the event of any conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) this SaaS Agreement, (ii) an applicable Addendum (including any exhibits, attachments and addenda thereto), and (ii) an applicable Ordering Document (but only for the transaction thereunder). For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Vendor issues any purchase orders or similar documents in connection with its sale of Services, it shall do so only for the purpose of Section 2.2(2) or 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 Vendor'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 Vendor 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.